The burden of blowing the whistle

Kuzel v Roche Products Ltd

The law on whistleblowing does not make clear whether it is for the employer to disprove that this was the reason for dismissal, or for the employee to prove that it was. In Kuzel v Roche Products Ltd, the Employment Appeal Tribunal (EAT) has made clear that the burden of proof is on the employer.

Basic facts

Dr Kuzel started work for Roche Products (which employs 50,000 people worldwide) in June 2003 as Head of Regulatory Affairs.

She was dismissed at a meeting in March 2005 by Mike Doherty, the Global Head of Regional Affairs, allegedly because of a breakdown in trust and confidence between them. She was taken back to her desk and escorted off the site in full view of her whole department.

Dr Kuzel claimed automatically unfair dismissal on the basis that she had made a protected disclosure about certain alleged irregularities at the company under section 103A ERA. The company claimed her dismissal was fair “for some other substantial reason” under section 98 of the ERA.

Tribunal decision

The tribunal rejected Dr Kuzel’s argument, saying that she could not substantiate her claims under section 103A. Equally, however, it rejected the potentially fair reason put forward by the company under section 98.

Instead it said that she had been dismissed by Mr Doherty because of a “catastrophic loss of temper” on his part and because he had failed to follow the advice of his own HR director. It decided her dismissal was automatically unfair because the company had failed to follow the statutory disciplinary procedure.

Dr Kuzel appeals

Strange as it may seem, Dr Kuzel appealed against that decision. She wanted to win the argument on the whistleblowing point, because there is a statutory cap on the compensatory award in “ordinary” unfair dismissal cases.

She argued that her claim should be treated like a discrimination claim, so that once the tribunal had rejected the company’s reason for her dismissal, it had no alternative but to infer that the reason for her dismissal was whistleblowing.

EAT decision

Although the EAT disagreed with Dr Kuzel on the discrimination point, it agreed that it was for her employer to disprove that the protected disclosure was the reason for her dismissal. The onus was not, therefore, on her to prove it.

It said that tribunals should ask the following questions when trying to establish whether an employee had been unfairly dismissed in whistleblowing cases:

• Has the employee shown that there is a real issue about whether the reason put forward by the employer was not the true one? Have they raised some doubt about that by advancing the section 103A reason?
• If so, has the employer proved their reason for dismissal?
• If not, dismissal is for the section 103A reason.

In answering those questions it follows:

• that even if the employer fails to prove the potentially fair reason that they have relied on, that does not automatically mean that tribunals will make a finding of unfair dismissal under section 103A 
• however, if the tribunal rejects the employer’s reason and if the claimant has made out a good case showing a section 103A reason, then the tribunal is entitled to infer that is the real reason for the dismissal
• employers can still try to persuade the tribunal that blowing the whistle was not the main reason they dismissed the worker, even if they did not put forward the reason decided on by the tribunal for the dismissal.

The EAT therefore allowed the appeal and remitted the case to the tribunal for a re-hearing.