Kuzel v Roche
Unfair dismissal law states that the onus is on the employer to prove the reason for dismissal. But what about a case involving alleged whistleblowing? The Court of Appeal has confirmed in Kuzel v Roche that the onus remains firmly on the employer.
Dr Kuzel was Head of Regulatory Affairs for Roche from June 2003 to May 2005 when she was dismissed. In 2003 and 2004 she had raised a number of concerns about the conduct of a colleague, Robert Vogel, as well as certain regulatory practices being carried out at Roche.
She was told in March 2005 that her contract was being terminated because of a total breakdown in her relationship with Mr Vogel. Roche did not comply with the statutory dispute procedures but argued that she would still have been dismissed, even if it had.
Dr Kuzel claimed automatic unfair dismissal on the ground that she had made a number of protected disclosures (in other words, she had blown the whistle on some of the company’s practices) under section 103A of the Employment Rights Act 1996 (ERA).
Tribunal and EAT decisions
The tribunal said that under section 98 of the ERA, the onus was on the company to show that the reason for dismissal was a potentially fair one.
It did not accept the company’s argument that Dr Kuzel was dismissed because of a breakdown in trust between her and Mr Vogel. But nor did it accept Dr Kuzel’s argument that she had been dismissed for making a protected disclosure. Instead, it decided that she was dismissed because of a “catastrophic loss of temper” by her manager and his failure to follow the advice given to him by his own Human Resources Director.
It therefore rejected her claim that the dismissal was automatically unfair under section 103A, saying instead that it was unfair under section 98 and section 98A of the 1996 Act.
The Employment Appeal Tribunal (EAT), however, said that as Dr Kuzel had raised some doubt about Roche’s reason for dismissing her and as Roche had not managed to persuade the tribunal of its reason, then the tribunal was entitled to infer that the section 103A reason was the real one.
It therefore allowed the appeal and remitted the case to the tribunal.
Court of Appeal decision
The Court of Appeal said that the whistleblowing provisions have to be seen and applied in the overall context of unfair dismissal law. The burden of proof was not, therefore the same, as the provisions that apply to discrimination legislation.
With that in mind, the 1996 Act presupposes that there can only be one main reason for a dismissal. It was for Roche to show that it had a potentially fair reason for dismissing Dr Kuzel. The tribunal decided that was the manager’s loss of temper. The fact that Dr Kuzel put forward a different reason – in this case whistleblowing – did not mean that the burden of proof passed to her.
All that was required of her was to produce some evidence supporting her case and challenging the evidence put forward by Roche. “An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was.”
As a result, the dismissal was unfair, because Roche had not shown some other substantial reason. It was not, however, automatically unfair, because Dr Kuzel had not proven that “the making of the protected disclosures” was the reason for her dismissal.
The Court of Appeal’s decision seems sensible as it merely requires those making assertions to prove them. In the real world however few employers leave smoking guns lying around and the burden of proof in discrimination law has evolved to reflect that fact.
Whistleblowing is a separate regime however, and the burden of proof makes it harder for claimants in these cases. This is particularly so where, unlike Dr Kuzel, there is no “ordinary” unfair dismissal case to fall back on thus making whistleblowing an “all or nothing” claim. Employers who cover their tracks well, or can mask improper motives with apparently legitimate ones (such as Brady v ASLEF) remain comparatively advantaged by the current position.