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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kuzel v Roche Products Ltd [2008] EWCA Civ 380 (17 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/380.html Cite as: [2008] ICR 799, [2008] IRLR 530, [2008] EWCA Civ 380 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
UKEAT/05/0516/06
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ARDEN
and
LORD JUSTICE LONGMORE
____________________
DR RYTA KUZEL |
Appellant |
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- and - |
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Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Bowers QC and Mr Jeremy Lewis (instructed by Clarkslegal LLP) for the Respondent
Hearing dates : 22nd and 23rd November 2007
____________________
Crown Copyright ©
Lord Justice Mummery :
Introductory
The appeal
The legislation
"An employee who is dismissed shall be regarded for the purposes of this Part 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."
"In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."
" ….it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
Background facts
ET decision
"13. It is for the Respondents to show the reason for dismissal; and in this case, the Respondents assert that there was such a serious breach of trust between Dr Kuzel and her colleagues (and in particular Mike Doherty and Robert Vogel) that it was no longer possible for them to work with her. The Respondents' case is that this amounted to "some other substantial reason." Dr Kuzel denies that this was the true reason. She points to the three significant regulatory issues set out above-the overwrapping, the archive problems and the Derbyshire clinic. Dr Kuzel asserts that these were the true reasons for her dismissal. In essence, the primary issue for the Tribunal to address is that posed by section 103A Employment Rights Act 1996: was the reason, or, if more than one, the principal reason for the dismissal the fact that Dr Kuzel had made a protected disclosure."
"17. …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."
EAT decision
"(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?
(2) If so, has the employer proved his reason for dismissal?
(3) If not, has the employer disproved the section 103A 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 section 103A reason entitles the Tribunal to infer that the s103A reason is the true reason for the 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."
Dr Kuzel's submissions
Roche's
submissions
Discussion and conclusions
Result
Lady Justice Arden:
Lord Justice Longmore: