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England and Wales Court of Appeal (Civil Division) Decisions


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] EWCA Civ 380, [2008] IRLR 530, [2008] ICR 799

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Neutral Citation Number: [2008] EWCA Civ 380
Case No: A2/2007/0630

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
UKEAT/05/0516/06

Royal Courts of Justice
Strand, London, WC2A 2LL
17/04/2008

B e f o r e :

LORD JUSTICE MUMMERY
LADY JUSTICE ARDEN
and
LORD JUSTICE LONGMORE

____________________

Between:
DR RYTA KUZEL
Appellant
- and -

ROCHE PRODUCTS LIMITED
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Thomas Linden QC and Mr James Laddie (instructed by BP Collins) for the Appellant
Mr John Bowers QC and Mr Jeremy Lewis (instructed by Clarkslegal LLP) for the Respondent
Hearing dates : 22nd and 23rd November 2007

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Mummery :

    Introductory

  1. Dr Kuzel claims that she was unfairly dismissed by Roche Products Limited (Roche). The reason for her dismissal is contested. In the Employment Tribunal (ET) Roche argued that there was a potentially fair reason, either a conduct reason or "some other substantial reason." Roche failed and was held liable for "ordinary" unfair dismissal. It was ordered to pay compensation capped at the then maximum of £56,800.
  2. Dr Kuzel argued in the ET that the reason for her dismissal was making protected disclosures, in which case her dismissal would have been "automatically" unfair and she would be entitled to uncapped compensation. The ET dismissed that claim.
  3. The issue on this appeal is whether the ET was doubly wrong: first, in rejecting the rival reasons for dismissal advanced by the parties and, secondly, in holding that she was dismissed for a reason that neither party advanced.
  4. Dr Kuzel's case is that, having rejected Roche's reason for dismissing her, the ET was bound, as a matter of law, to accept the protected disclosures reason advanced by her. It should have held that her dismissal was automatically unfair for that reason. Instead, the ET held that she was unfairly dismissed as a result of Roche's failure to establish a potentially fair reason for dismissal. Although the ET decided that she was unfairly dismissed, it was, she says, on the wrong basis.
  5. The point appears to be a straightforward factual question: why did Roche dismiss Dr Kuzel? There is no right of appeal from the ET on questions of fact. However, the case has stirred up plenty of argument in the Employment Appeal Tribunal (EAT) and in this court about who has the burden of proving the reason for dismissal. That is a topical question of law on appeals from the ET. It has been extensively argued in recent discrimination cases following specific statutory intervention on the question of who has to prove the prohibited reason for less favourable treatment of the claimant.
  6. The appeal

  7. The appeal is from the order of the EAT (HHJ Peter Clark presiding) dated 2 March 2007. The EAT allowed Dr Kuzel's appeal and remitted the matter to the same ET for further consideration of her "whistleblower's" claim under section 103A of the Employment Rights Act 1996, as amended (the 1996 Act). The EAT judgment is reported at [2007] ICR 945.
  8. Although Dr Kuzel persuaded the EAT that there was an error of law in the ET decision, she appeals to this court because she is dissatisfied with the order remitting her case for a further hearing in he ET. Her case is that her successful appeal should have resulted in a positive finding in her favour on liability for unfair dismissal contrary to section 103A.
  9. This state of affairs is unusual. It arose in this way. The ET unanimously decided on 18 July 2006 that Roche had unfairly dismissed Dr Kuzel, that her dismissal was unfair by reason of the absence of a potentially fair reason and for non-compliance with the relevant dismissal and disciplinary procedures contrary to section 98A of the 1996 Act. It was also in breach of contract.
  10. The ET dismissed Dr Kuzel's claim that the reason for her dismissal was making protected disclosures and that her dismissal was contrary to section 103A. She succeeded, however, in demonstrating to the EAT that the ET erred in law in rejecting her whistleblower's claim. The ET's dismissal of her protected disclosure claim should, she says, have been reversed by the EAT rather than just being set aside and remitted to the ET. She was entitled to a substantive decision in her favour rather than another ET hearing. On this appeal it was argued that she is entitled to a judgment for unfair dismissal on the protected disclosures claim for the simple reason that Roche failed to establish a potentially fair reason for dismissal. Remitting the matter to the ET for another hearing was unnecessary and wrong in law.
  11. While the ET decision on liability was under appeal it gave a reserved judgment on remedy on 24 November 2006 making an order for Dr Kuzel's re-instatement to her post at Welwyn Garden City and calculating her total loss to provide a gross sum of £79, 988.83.
  12. On 24 August 2007 Wall LJ granted Roche permission to cross appeal against the EAT decision to remit her protected disclosures claim to the ET. It wants the ET decision dismissing that claim restored. According to Roche there was no error in the ET decision rejecting the rival reasons for dismissal and in dismissing her whistleblower's claim for uncapped compensation. There were disputes about the extent to which Roche was entitled in this court to argue points that were not raised below. I will deal with the procedural objections in the course of the judgment rather than by way of preliminary decision.
  13. The legislation

  14. The provisions governing the law of unfair dismissal are in Part X of the 1996 Act.
  15. Section 103A of the 1996 Act was inserted in Part X by section 5 of the Public Interest Disclosure Act 1998. It provides that-
  16. "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."
  17. Nothing is said in section 103A or in the related provisions about who has to show that making a protected disclosure was the reason, or the principal reason, for the dismissal. Section 98 (1) appears, however, to provide in general terms that it is for the employer to show the reason for dismissal-
  18. "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."
  19. Section 98(2) sets out the potentially fair reasons for dismissal: capability, conduct and, redundancy.
  20. Although there is no specific provision about who has to show that the making of a protected disclosure is the reason for dismissal, the effect of section 48(2) of the 1996 Act is that, where an employee complains of being subjected to detriment by his employer for making a protected disclosure
  21. " ….it is for the employer to show the ground on which any act, or deliberate failure to act, was done."

    Background facts

  22. Roche, an international pharmaceutical group, employed Dr Kuzel as Head of Regulatory Affairs from 9 June 2003 until she was dismissed on 16 March 2005 with effect from 16 May 2005. Roche did not comply with the statutory disciplinary procedures in the Employment Act 2002. As at the date of dismissal, Dr Kuzel was receiving an annual income from Roche of over £100,000 a cap of £56,800 on compensation could have a serious impact on the value of her claim.
  23. Dr Kuzel's line manager was Mr Michael Doherty, Global Head of Regional Affairs. The Human Resources Director was Mr Chris Bennett. One of her colleagues was Mr Robert Vogel, Global Head of Regulatory Operations. During the course of her employment Dr Kuzel raised concerns about various issues, one of which was the conduct of Mr Vogel. In November 2004 Dr Kuzel complained about alleged comments by Mr Vogel to an external candidate for employment with Roche.
  24. Three other concerns were relied on by Dr Kuzel as protected disclosures made by her: first, "overwrapping", which was discussed in early June 2003 and raised on 2 March 2004; secondly, archiving irregularities; and, thirdly and most important, notification of a visit in early March to Roche by the Medicines and Healthcares Products Regulatory Agency (MHRA). The visit followed concerns about the sale of a Roche product "Xenical" to three slimming clinics in Derbyshire and other parts of the United Kingdom. The ET made no express finding as to whether the three alleged disclosures were protected disclosures.
  25. On 16 March 2005 Mr Doherty summoned Dr Kuzel to a meeting in the office of the Human Resources Director. He told her that her contract was being terminated because of the breakdown in her relationship with Mr Vogel and because she had broken an agreement or understanding with him. He had lost all trust in her. She and Robert Vogel were not working well together.
  26. It was common ground between the parties in the ET that Roche failed to comply with the statutory disciplinary procedures, but Roche contended that Dr Kuzel would have been dismissed, even if it had complied with the procedures.
  27. When faced with her claim for unfair dismissal Roche initially pleaded that the reason for her dismissal was gross misconduct, a claim that was abandoned at the start of the hearing in the ET. Roche relied alternatively on "some other substantial reason" under section 98(1)(b), this being her breach of trust in respect of her working relationship with Mr Doherty and her deteriorating relationship with Mr Vogel.
  28. As indicated earlier Dr Kuzel contended that the reason for her dismissal was that she had made a protected disclosure and that her dismissal was automatically unfair contrary to section 103A.
  29. ET decision

  30. The ET dealt with the reasons for dismissal as follows-
  31. "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."
  32. The ET rejected Roche's pleaded case as to the reason for the dismissal of Dr Kuzel. It held that there was no evidence of any gross misconduct. It also rejected the suggestion that there were relationship difficulties involving Dr Kuzel. It held that the reason for her 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" (paragraph 23). Neither was a potentially fair or admissible reason.
  33. As to Dr Kuzel's case on section 103A, the ET held that-
  34. "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."
  35. There was disagreement about what the ET meant by the last sentence. Was the ET putting the burden of proof on Dr Kuzel and saying that her section 103 A claim had not been made out by her? Or was it saying that Roche had disproved her section 103A claim? Mr Linden appearing for Dr Kuzel submitted that there was no indication in this crucial paragraph that the ET had applied the burden of proof at all still less required Roche to prove the reason for dismissal.
  36. EAT decision

  37. Dr Kuzel's appeal to the EAT met with partial success. The EAT held that the approach of the ET to the burden of proof on the protected disclosure claim was not legally correct, while rejecting her principal point on the appeal that the ET wrongly treated Roche as having disproved the prohibited reason for dismissal in circumstances where it had not proved the actual reason advanced by it.
  38. The EAT also held that it was apparent from the ET's reasoning in paragraph 17 that it was for Dr Kuzel to "make out" (i.e.show) that she was dismissed for the reason prohibited by section 103A (paragraph 51). In the view of the EAT that was an erroneous approach to the burden of proving the reason for her dismissal .
  39. The EAT held that the ET should have followed the approach as summarised by the EAT in paragraph 47. The EAT reviewed the authorities, in particular the decisions of this court in Smith v. Hayle Town Council [1978] IRLR 413 and Maund v Penwith District Council [1984] IRLR 129, and considered the rival submissions. The EAT supplied a helpful analysis of the burden of proof, first by setting out a series of questions on the burden of proof and then answering them-
  40. "(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

  41. Mr Thomas Linden QC appeared for Dr Kuzel. His primary submission was that, having rejected Roche's alternative reasons for dismissing her, the ET ought to have held that, as a matter of law, her case under section 103A must succeed. The failure of the ET to find that the claim under section 103A was established was an error of law. The error was on the burden of proof in proceedings for unfair dismissal under section 103A. The ET erred in law in finding that the reason for dismissal was other than the making of protected disclosures by Dr Kuzel. This was the only reason left in play after the ET had rejected Roche's reasons of conduct or some other substantial reason.
  42. Mr Linden's secondary submission was that, as appeared in paragraph 17 of its decision quoted in paragraph 27 above, the ET had placed the burden of proof under section 103A on Dr Kuzel. That was wrong. It was not for her to have "made out" the reason for her dismissal. She had discharged the evidential burden in relation to the protected disclosures so as to trigger the operation of the legal burden. It was for Roche to show the real reason for dismissal and it failed to do so. The ET had dealt with the crucial issue of the reason for dismissal the wrong way round. It had considered the protected disclosure reason before considering Roche's linked failure to prove a potentially fair reason for dismissing her. It should have started with the failure of Roche to show the reason. Its failure to prove the actual reason for dismissal left a gap which only Dr Kuzel's reason could fill.
  43. On this point Mr Linden cited decisions of this court, in particular the judgments of Griffiths and Purchas LJJ, in Maund v. Penwith District Council [1984] ICR 143 (Maund), as providing a relatively straightforward guide in an unfair dismissal case, in which there were two rival theories of the reason for dismissal.
  44. In Maund the employer contended that the reason for dismissal was redundancy; the employee contended that the reason was for membership of a trade union and/or participation in trade union activities, which, like making protected disclosures, were automatically unfair reasons. The Court of Appeal referred to those unfair dismissal provisions of the Employment Protection (Consolidation) Act 1978 which were equivalent to the provisions cited above from the 1996 Act. It was held that the legal burden of proving the reason for the dismissal, on the civil standard of a balance of probabilities, was placed on the shoulders of the employer. As a general rule this would not be a difficult burden to discharge after a full investigation of the facts by the tribunal.
  45. Once, however, the employer had produced evidence to the Tribunal that the reason for dismissal was redundancy, it was for the employee to produce evidence sufficient to raise an issue or some doubt as to whether the employer's reason was the true reason or whether there was a different reason. This task of the employee was described by Griffiths LJ as the "evidential burden" which was "a lighter burden than the legal burden placed upon the employer." It was necessary for the employee to do more than simply assert in argument that the reason advanced by the employer was not the true reason. It was not, however, a matter of shifting to the employee the legal burden of proving the reason for the dismissal. That burden remained where it was placed by the statutory provisions i.e. on the employer. If the employer failed to satisfy the tribunal as to the reason for which he dismissed the employee, then the dismissal must be regarded as unfair.
  46. Mr Linden submitted that it was clear that, although the ET did not deal expressly with the burden of proof issue, Dr Kuzel had discharged the evidential burden of raising an issue both on the reasons advanced by Roche and on the protected disclosure reason. She had made at least three protected disclosures, the most important of them being made about a week before her dismissal. Roche failed to comply with the statutory disciplinary procedures and there was no obvious alternative reason for dismissing Dr Kuzel. Roche was obliged to provide the true reason for her dismissal. It had failed to discharge the burden of proving that its reason was the true reason, leaving only Dr Kuzel's reason as one which the ET could rely on.
  47. By that route Mr Linden returned to his principal point: the logic of the court's reasoning in Maund, as applied to this case, was that the necessary consequence of Roche's "linked failure" to prove the actual reason for dismissal advanced by it under section 94 was that the reason for dismissal "is deemed to be the prohibited reason" (i.e. the section 103A protected disclosure reason) relied on by Dr Kuzel.
  48. Mr Linden criticised the ET's conclusion that the reason for her dismissal was Mr Doherty's loss of temper and failure to follow advice by Human Resources. These were not "reasons" advanced by either side. In truth loss of temper was not in itself a "reason" at all, the real question being why he lost his temper. There was evidence that Mr Doherty had taken the decision to dismiss Dr Kuzel some five days or so before the occasion on which he lost his temper. Failure to follow advice was described by Mr Linden as a procedural inadequacy of the dismissal process rather than itself standing as a reason for dismissal.
  49. In brief, Dr Kuzel's complaint on this appeal was that the EAT did not go far enough in addressing the errors of law in the ET decision to dismiss her claim of protected disclosure. Rather than remitting the matter to the ET on allowing the appeal, the EAT should have allowed the appeal and substituted a finding of unfair dismissal for making protected disclosures.
  50. Roche's submissions

  51. Mr John Bowers QC appearing for Roche opposed Dr Kuzel's appeal and raised arguments by way of cross appeal.
  52. His primary position was that the burden of proving that the making of protected disclosures was the reason for the dismissal was on Dr Kuzel. She had not discharged that burden. He distinguished Maund on the basis that it was a case of ordinary unfair dismissal rather of than of automatic unfair dismissal, whereas Mr Linden relied on it as a case which covered both kinds of dismissal. Mr Bowers also cited Smith v. Hayle Town Council [1978] ICR 996 (a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal rather than on the reason for dismissal) in support of the submission that the burden was on Dr Kuzel to prove her whistleblower's case.
  53. Mr Linden objected that this argument had not been raised before and that, in the absence of exceptional circumstances, Mr Bowers was not entitled to raise it now by way of cross appeal. Indeed, Roche had argued before the EAT that the ET had properly directed itself that the burden of proof of the reason for dismissal rested on Roche (see paragraph 3.2 of its respondent's notice in the EAT). This court should, he said, refuse to hear this aspect of the cross appeal.
  54. Although Mr Linden's objections are understandable, I would allow this point to be raised. The whole point of this appeal is to resolve, at this level of decision, the dispute about who has to show the reason for dismissal in a case where there are rival reasons, one of them being the making of protected disclosures. It would be unfortunate if this court were unable to resolve one aspect of the debate because this particular argument has not been raised before. Mr Linden is not prejudiced by the cross appeal. His skeleton argument in support of his appeal shows that he was prepared with his arguments about the legal burden being on Roche with only an evidential burden on Dr Kuzel.
  55. Mr Bowers contested Mr Linden's principal submission that Roche's failure to prove the reasons on which it relied in defending the claim for ordinary unfair dismissal meant that Dr Kuzel must succeed in the reason for dismissal relied on by her. He described the submission as extreme. It amounted to saying that the findings of fact by the ET should be disregarded. It did not logically follow that, because the ET found as a fact that the reason for dismissal was not as Roche asserted, it must find as a fact that the reason for dismissal was as Dr Kuzel asserted. Depending on the evidence the ET might make an inference as to the reason for dismissal, but there was no "must" about it. There was no error of law in an ET finding, on the one hand, that a protected disclosure had not been established as the reason for dismissal and, on the other hand, that the dismissal is unfair because no alternative potentially fair reason is established.
  56. In his alternative submissions Mr Bowers argued that, even if the burden of proof was on Roche, the EAT was wrong to set aside the ET's decision to dismiss Dr Kuzel's protected disclosure claim. If, as he contended, the ET had approached the burden of proof correctly by placing it on the shoulders of his client, it was entitled to find as a fact that making protected disclosures was not the reason for her dismissal. There was no need to remit the case to the ET to make any further findings on Dr Kuzel's protected disclosure claim
  57. Discussion and conclusions

  58. The summary of the submissions shows how worked up lawyers can get about something like the burden of proof. In some situations, such as being charged with a criminal offence, there is plenty to get worked up about. It is very important indeed. In many areas of civil law, however, the burden of proof is not a big thing. Discrimination law is an exception, because discrimination is so difficult to prove. In the case of unfair dismissal, however, there has never been any real problem for the tribunals in practice. The danger is that in cases like this something so complicated will emerge that the sound exercise of common sense by tribunals will be inhibited.
  59. A few preliminary observations may clarify, even simplify some aspects of the case.
  60. First, the protected disclosure provisions must be construed and applied in the overall context of unfair dismissal law in Part X of the 1996 Act into which section 103A was inserted. Part X includes sections 94 to 134. There was a suggestion in argument before the EAT, which was not pursued in this court, that the burden of proof in protected disclosure cases should be the same as that applied in equivalent provisions governing discrimination cases. In those cases the burden of proving the reason for less favourable treatment of the claimant shifts to the respondent. Mr Linden argued for a "strictly limited" role for discrimination law in protected disclosure cases. The thinking behind the association of protected disclosure and discrimination is that both causes of action involve acts or omissions for a prohibited reason. Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs a risk of complicating rather than clarifying the legal concepts. As Mr Linden accepted there simply is no need to resort to the discrimination legislation in order to ascertain the operation of the burden of proof in unfair dismissal cases.
  61. Secondly, it is not profitable to discuss burden of proof issues in generalities. It must be related to particular issues, in this case to the different aspects of an unfair dismissal claim. On some issues the 1996 Act is completely silent on the burden of proof. In the absence of specific statutory provision the general rules apply. The general rules are that a person bringing a claim must prove it and a person asserting a fact must produce some evidence for it. Thus, the burden was on Dr Kuzel to prove that she was unfairly dismissed. It was for her to produce some evidence for the facts she alleged. But it does not follow that the burden of proof was on her in respect of every element of the unfair dismissal claim.
  62. An unfair dismissal claim has a number of aspects any or all of which may be disputed. In this case the dispute is about the reason for dismissal and where the burden of proof lies. The burden may differ according to the nature of the disputed issue. On the specific issue of dismissal, for example, the claimant employee must prove that he was dismissed. This will not usually be a difficult burden to discharge. The production of a letter of dismissal usually proves the point. There are, however, cases in which there is disputed evidence about whether the employee resigned or whether he was constructively dismissed.
  63. Similarly there may be an issue as to the claimant's status affecting his right not to be unfairly dismissed. It is for the claimant to produce evidence to show that he was an employee of the respondent. This is not normally difficult. In most cases there will be a written contract, written particulars or some other document relating to pay arrangements and so on. In some cases oral evidence will be needed to prove the terms and conditions on which the claimant did work for the respondent.
  64. Thirdly, the unfair dismissal provisions, including the protected disclosure provisions, pre-suppose that, in order to establish unfair dismissal, it is necessary for the ET to identify only one reason or one principal reason for the dismissal.
  65. Fourthly, the reason or principal reason for a dismissal is a question of fact for the ET. As such it is a matter of either direct evidence or of inference from primary facts established by evidence.
  66. Fifthly, the reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. They are within the employer's knowledge.
  67. Sixthly, the burden of proof issue must be kept in proper perspective. As was observed in Maund, when laying down the general approach to the burden of proof in the case of rival reasons for unfair dismissal, only a small number of cases will in practice turn on the burden of proof.
  68. I turn from those general comments to the special provisions in Part X of the 1996 Act about who has to show the reason or principal reason for the dismissal. There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant. Thus, it was clearly for Roche to show that it had a reason for the dismissal of Dr Kuzel; that the reason was, as it asserted, a potentially fair one, in this case either misconduct or some other substantial reason; and to show that it was not some other reason. When Dr Kuzel contested the reasons put forward by Roche, there was no burden on her to disprove them, let alone positively prove a different reason.
  69. I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.
  70. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.
  71. The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.
  72. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.
  73. I emphatically reject Roche's contention that the legal burden was on Dr Kuzel to prove that protected disclosure was the reason for her dismissal. The general language of section 98 (1) is applicable to all of the kinds of unfair dismissal in the 1996 Act ("for the purposes of this Part"), including the subsequently inserted provisions. Section 98(1) is inconsistent with Mr Bowers's submission, as is the specific provision placing the burden of proof on the employer in case of detriment to the employee by reason of a protected disclosure. It is probable that no similar provision was made in the case of dismissal because it was considered, correctly in my view, that the situation in the case of dismissal was already covered by the general terms of section 98(1) and was blindingly obvious as a matter of general principle. An employer who dismisses an employee has a reason for doing so. He knows what it is. He must prove what it was.
  74. Result

  75. I would dismiss Dr Kuzel's appeal on the ground that there was no error of law in the decision of the ET. It correctly placed the burden on proof relating to the reason for her dismissal on Roche and the ET correctly applied it in its decision.
  76. I would allow the cross appeal on the ground that the EAT was not justified by any error in the decision of the ET in setting aside the ET's order dismissing Dr Kuzel's claim for automatic unfair dismissal for making protected disclosures and in remitting the matter to the ET. The decision of the ET should be re-instated.
  77. It was for Roche to show the reason for dismissal. Roche could do this by adducing evidence supporting the reason relied on by it. That failed. It could also do so by contesting the evidence produced by Dr Kuzel that the making of protected disclosures was the true reason for her dismissal. That succeeded.
  78. The 1996 Act presupposes that there can only be one reason or principal reason for the dismissal within the meaning of the Act. The ET found that the principal reason was Mr Doherty's loss of temper and failing to follow advice. Dr Kuzel's criticisms of the reasons cannot advance her ground of appeal because, if they are correct, it just means that Roche have failed to establish any potentially fair reason for the dismissal. In coming to its conclusion the ET did not require Dr Kuzel to prove the reason for dismissal. It simply concluded that this reason put forward by her was not "made out." It was not "made out" because the ET decided that Roche had disproved it. The ET arrived at that conclusion by considering all the evidence from both sides on the issue of the reason for dismissal. The ET was entitled to find on the evidence that the reason was not that contended for by either side. The result was that the dismissal was unfair, because Roche had not shown "some other substantial reason," but the dismissal was not automatically unfair, because it had shown that the making of the protected disclosures was not the reason for dismissal. Although this is a very unusual case, that result is legally and logically possible. It is a finding of fact from which there is no appeal. In arriving at it the ET made no legal error on the burden of proof.
  79. Finally, although I agree with the EAT's careful analysis of burden of proof in this type of case, I have reached a different conclusion on applying the analysis to the particular facts of this case.
  80. Lady Justice Arden:

  81. I agree.
  82. Lord Justice Longmore:

  83. I also agree.


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