In Kuzel v Roche, handed down this morning, the Court of Appeal has comprehensively analysed the operation of the burden of proof in unfair dismissal claims. The EAT decision was considered in the Employment Law List bulletin 8/3/07.
Noting "how worked up lawyers can get about something like the burden of proof", Mummery LJ sought to resolve the dispute about who has to show the reason for dismissal in a case where there are rival reasons put forward by each side, one of them being the making of protected disclosures.
Urging that the issue needs to be seen in the context of Part X of the ERA 1996, it was held that it was clearly for the employer to show that it had a (potentially fair) reason for dismissing the employee. When an employee positively asserts a different reason such as whistleblowing the burden of proof does not pass to him or her; whilst the employee must produce some evidence supporting the positive case, the employee does not bear the burden of proving that the dismissal was for that reason.
It is sufficient for the employee to challenge the evidence produced by the employer to show that the reason advanced by him for the dismissal and to produce some evidence of a different reason. As Mummery LJ stated, "An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was."
[Thanks also to Nick Hanning of RWPS Law, and to John Bowers QC of Littleton Chambers (who acted for the Respondent), for telling me about this case]