Employment Appeal Tribunal

Published April 9, 2007

Kuzel v Roche Products Ltd

Before Judge Peter Clark, Mr K. Edmondson and Mr J. Shrigley

Judgment March 2, 2007

If an employee claiming she was unfairly dismissed for whistleblowing raised some doubt as to the employers’ reason for dismissal and the employers had not proved their reason, if they had not disproved the protected disclosure reason, then the dismissal was for the reason advanced by the claimant.

The Employment Appeal Tribunal so held when remitting an unfair dismissal claim by Dr R. Kuzel against her employers, Roche Products Ltd, to an employment tribunal sitting at Bedford.

By a decision sent to the parties on July 18, 2006, the tribunal had upheld her claim of unfair dismissal under section 98 of the Employment Rights Act 1996 but had held that the reason for the dismissal was not that she had made a protected disclosure.

Miss Ruth Downing for the claimant; Mr John Bowers, QC, for the employers.

JUDGE PETER CLARK, giving the reserved judgment of the tribunal, said that the financial significance of the appeal was that whereas ordinary section 98 unfair dismissal was subject to the statutory cap, dismissal for whistleblowing was not.

The tribunal had rejected both the employers’ and claimant’s reason for dismissal and found that it was due to a loss of temper by a senior executive.

Where an employee raised the whistleblowing issue of section 103A of the 1996 Act, as inserted by sections 5 and 18(2) of the Public Interest Disclosure Act 1998, the position was governed by the Court of Appeal decision in Maund v Penwith District Council ([1984] ICR 143, 149) where Lord Justice Griffiths gave guidance on how to approach conflicting reasons for dismissal.

Assuming the claimant had raised a prima facie case of an inadmissible reason, the onus rested on the employer to prove his reason for dismissal.

But what happened where the employer failed to establish the reason he advanced? Did it mean the tribunal was bound to conclude that the reason was that advanced by the claimant?

Miss Downing submitted that if the tribunal rejected the employers’ reason it should apply the reverse burden of proof as in discrimination cases: see Igen Ltd v Wong ([2005] ICR 931).

There was a danger in taking a broad view that because the protection afforded to whistleblowers under section 103A was protection against a form of discrimination, the statutory regime applied to those unlawfully discriminated on the ground of sex or race could simply be grafted on to the provisions of the 1996 Act under which the protected disclosure protection was provided.

Section 103A did not provide expressly for the burden of proof. The appeal tribunal derived no direct assistance from the fact that in ordinary unfair dismissal cases the burden of proving a potentially fair reason for dismissal lay on the employers but they thought it informed the Court of Appeal’s guidance in Maund. The alteration to the burden of proof in the discrimination statutes did not alter that approach.

The tribunal should ask: had the claimant shown that there was a real issue as to whether the reason put forward by the employers was not the true reason?

If so, had the employers proved their reason? If not, had the employers disproved the section 103A reason advanced by the claimant? If not, dismissal was for the section 103A reason.

It followed that the employers’ failure to prove the reason relied on did not automatically result in a finding of unfair dismissal under section 103A.

However, rejection of the employers’ reason, coupled with the claimant having raised a prima facie case, entitled the tribunal to infer that the section 103A reason was the true one; but it remained open to the employers to satisfy the tribunal that the making of protected disclosures was not the reason for dismissal even if the real reason as found by the tribunal was not that advanced by the employers.

It was not at any stage for the claimant to prove the section 103A reason.

Solicitors: B P Collins, Gerrards Cross; Clarkslegal LLP, Reading.

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