Ross v Eddie Stobart Ltd

An employee who lacks the qualifying service for ordinary unfair dismissal and alleges automatic unfair dismissal for making protected disclosures under Employment Rights Act 1996, section 103A bears the burden of proving that the protected disclosures were the reason or principal reason for dismissal. The same approach applies to comparable automatic-dismissal protections.

The burden question will not determine the result where the Employment Tribunal has made a clear finding, based on accepted evidence, that the employer dismissed for conduct and that protected disclosures played no part. An appellate challenge for perversity remains subject to a high threshold.

The claimant, an HGV driver, lacked the qualifying service needed for an ordinary unfair-dismissal claim. He alleged automatic unfair dismissal under sections 103A, 100 and 101A of the Employment Rights Act 1996.

An earlier Employment Tribunal dismissed the claims. The Employment Appeal Tribunal allowed an earlier appeal and remitted the section 100 and section 103A complaints. On rehearing, the Manchester Employment Tribunal found that the claimant had made two protected disclosures, but that his dismissal was for conduct and that the disclosures played no part.

Permission was granted on the questions whether the Tribunal had wrongly allocated the burden of proof and whether its finding as to the reason for dismissal was perverse.

1. Appeal dismissed. The Employment Tribunal correctly directed itself that, where an employee has insufficient qualifying service for ordinary unfair dismissal, the employee must prove on the balance of probabilities that the reason or principal reason for dismissal was the protected disclosure alleged under section 103A of the Employment Rights Act 1996.

2. Smith v Hayle Town Council, as consistently followed at Court of Appeal and Employment Appeal Tribunal level, governed that issue. There was no material distinction between trade-union dismissal protection and the protections for dismissal for health and safety, working-time, or whistleblowing reasons. The later introduction of whistleblowing protection by the PIDA 1998 did not justify a different allocation of the burden.

3. Kuzel v Roche Products did not assist the claimant on the qualifying-service issue, because the employee in that case had completed the necessary qualifying period. In any event, the burden point was not determinative here. The Tribunal had unequivocally accepted the dismissing manager's evidence that conduct was the reason for dismissal and that the protected disclosures played no part.

4. The challenge for perversity failed. Despite procedural shortcomings and features of the employer's evidence relied upon by the claimant, the high threshold for appellate intervention was not met. The Tribunal's conclusion on the reason for dismissal was not perverse.

• Employment Appeal Tribunal: appeal dismissed; the Manchester Employment Tribunal's dismissal of the automatic-unfair-dismissal claims was upheld.
• Manchester Employment Tribunal: by reserved judgment promulgated on 21 March 2012, dismissed the remitted claims under sections 100 and 103A of the Employment Rights Act 1996.
• Employment Appeal Tribunal: an earlier appeal was allowed and the claims under sections 100 and 103A were remitted for rehearing: [2011] RTR 30.
• Liverpool Employment Tribunal: by judgment dated 30 November 2009, dismissed the original claims.