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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kuzel v Roche Products Ltd [2007] UKEAT 0516_06_0203 (2 March 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0516_06_0203.html Cite as: [2007] ICR 945, [2007] UKEAT 0516_06_0203, [2007] IRLR 309, [2007] UKEAT 516_6_203 |
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At the Tribunal | |
On 30 January 2007 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR K EDMONDSON JP
MR J C SHRIGLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS RUTH DOWNING (of Counsel) Instructed by: Messrs B P Collins Solicitors Collins House 32-38 Station Road Gerrards Cross Bucks SL9 8EL |
For the Respondent | MR JOHN BOWERS (One of Her Majesty's Counsel) Instructed by: Clarkslegal LLP Solicitors One Forbury Square The Forbury Reading Berks RG1 3EB |
SUMMARY
Unfair Dismissal – Automatically unfair reasons
Public Interest Disclosure
Section 103A of the Employment Rights Act 1996 inadmissible reason for dismissal – burden of proof – whether Protected Disclosures – case remitted to same Employment Tribunal for further consideration.
HIS HONOUR JUDGE PETER CLARK
The Facts
"12.5 On Wednesday 16 March 2005 at Welwyn, Mike Doherty called Dr Kuzel into a meeting at 12:30 pm in Chris Bennett's office. As she entered the room Mr Doherty told her that her contract was being terminated because of the breakdown of her relationship with Robert Vogel and because she had broken an agreement with him. Mr Doherty told Dr Kuzel that he had lost all trust in her and that she and Robert Vogel were not working well together. Mr Bennett then told her that Susie Dyer would be waiting for her when she went back and would allow her to collect her personal belongings. Dr Kuzel was then escorted off site by Miss Dyer in front of her whole department."
Issues before the Tribunal
"An employee who is dismissed shall be regarded for the purposes of this Part [Part X] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
"SOSR owing to the Claimant's breach of trust in respect of her working relationship with Mike Doherty and her deteriorating relationship with Robert Vogel. The decision [to dismiss] was within the range of reasonable responses available to the Respondent."
The Employment Tribunal decision
"23. The Tribunal have concluded that the reason for Dr Kuzel's dismissal was Mr Doherty's catastrophic loss of temper and his failure to follow the advice given to him by his own Human Resources Director."
As to the s103A reason contended for by the Claimant, they said this (para 17):
"17. Nonetheless, the Tribunal cannot find that it was Dr Kuzel's actions and zeal in pursuing the regulatory issues described above that led to her dismissal. There is evidence enough both of Mr Doherty encouraging and supporting Dr Kuzel in the actions that she was taking, and a clear absence of evidence of the Respondents criticising Dr Kuzel for pursuing these issues, even if there was a difference in style and approach between the Respondents and Dr Kuzel. Accordingly, Dr Kuzel's claims under Section 103A of the 1996 Act are not made out."
Public Interest Disclosure
"(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of [Part X])."
(i) to the wider group of workers; it is not limited to employees (see the definitions in s230 ERA), and
(ii) covers action short of dismissal, but not dismissal itself.
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
"On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
Proving the Reason for dismissal
"11. If an employer produces evidence to the Tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubt upon the employer's reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them.
12. But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal."
"24. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04)."
"by dismissing her, or subjecting her to any other detriment."
(1) Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent, some other substantial reason, was not the true reason? Has she raised some doubt as to that reason by advancing the s103A reason?
(2) If so, has the employer proved his reason for dismissal?
(3) If not, has the employer disproved the s103A reason advanced by the Claimant?
(4) If not, dismissal is for the s103A reason.
In answering those questions it follows:
(a) that failure by the Respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under s103A;
(b) however, rejection of the employer's reason, coupled with the Claimant having raised a prima facie case that the reason is a s103A reason entitles the Tribunal to infer that the s103A reason is the true reason for dismissal, but
(c) it remains open to the Respondent to satisfy the Tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the Tribunal is not that advanced by the Respondent;
(d) it is not at any stage for the employee (with qualifying service) to prove the s103A reason.
New Point
The present case
"Accordingly, Dr Kuzel's claims under Section 103A of the 1996 Act are not made out."
gives rise to the clear inference that in some way it was for the Claimant to prove the s103A reason. That, as we have endeavoured to explain, is an error of law.
Disposal