Kuzel v Roche Products Ltd

Under Part X of the Employment Rights Act 1996, the employer bears the legal burden of showing the reason, or principal reason, for dismissal. An employee who alleges a protected-disclosure reason need only produce evidence raising that issue; the employee does not bear the legal burden of proving it.

A tribunal must assess all the evidence and make a factual finding as to the true reason. Rejection of the employer’s asserted potentially fair reason permits, but does not compel, an inference that the employee’s asserted automatically unfair reason was the true reason. The tribunal may find a reason advanced by neither party. Thus a dismissal may be ordinarily unfair for want of a potentially fair reason while not being automatically unfair for protected disclosure.

Dr Ryta Kuzel was dismissed by Roche Products Limited. The Employment Tribunal found her ordinarily unfairly dismissed because Roche had not established a potentially fair reason and had not complied with dismissal procedures. It rejected her claim that the dismissal was automatically unfair because she had made protected disclosures.

The Employment Appeal Tribunal allowed her appeal on the protected-disclosure issue and remitted it to the tribunal for reconsideration: [2007] ICR 945. Dr Kuzel appealed, seeking a substituted finding under section 103A. Roche cross-appealed, seeking restoration of the tribunal’s rejection of that claim. The central issue was the allocation and effect of the burden of proving the reason for dismissal where the parties advanced rival reasons.

Disposition

1. The employee’s appeal was dismissed. The employer’s cross-appeal was allowed. The Employment Appeal Tribunal’s remittal was set aside and the Employment Tribunal’s dismissal of the section 103A claim was restored.
2. Section 98(1) of the Employment Rights Act 1996 applies throughout Part X, including section 103A. The employer must show the reason or principal reason for dismissal because the relevant facts operated on the employer’s mind and are peculiarly within its knowledge.
3. An employee who positively alleges a different, inadmissible reason, such as protected disclosure, must produce some supporting evidence. That is an evidential burden only. It does not transfer the legal burden of proving the reason for dismissal from the employer to the employee.
4. The reason for dismissal is a question of fact. After considering the whole body of evidence, the tribunal may draw reasonable inferences and may find that the true reason was neither the employer’s pleaded potentially fair reason nor the employee’s alleged protected-disclosure reason. The employer’s failure to establish its asserted fair reason therefore does not automatically establish the employee’s section 103A case.
5. Here, the tribunal was entitled to find that Roche had not established a potentially fair reason, making the dismissal ordinarily unfair, but had successfully shown that protected disclosures were not the reason for dismissal. This unusual combination was legally and logically possible. The tribunal made no error of law in its approach to the burden of proof.

Lady Justice Arden and Lord Justice Longmore agreed with Lord Justice Mummery.

• Court of Appeal (Civil Division) Dismissed the employee’s appeal and allowed the employer’s cross-appeal, restoring the Employment Tribunal’s rejection of the automatic-unfair-dismissal claim.
• Employment Appeal Tribunal Allowed the employee’s appeal on the protected-disclosure issue and remitted that claim to the Employment Tribunal: [2007] ICR 945.
• Employment Tribunal Held that the dismissal was ordinarily unfair, but rejected the claim that its reason was protected disclosure contrary to section 103A.