Kuzel v Roche Products Ltd

EAT: Judge Peter Clark, Mr K Edmondson and Mr J C Shrigley: 2 March 2007

The claimant, during her employment as head of regulatory affairs for a pharmaceutical company, raised issues of regulatory compliance with her employers. When she was summarily dismissed by the head of regional affairs following a dispute with a colleague, she made a claim to an employment tribunal that her dismissal was automatically unfair under section 103A of the Employment Rights Act 1996 in that the reason for her dismissal was that she had made the protected disclosures. The tribunal, directing itself that it was for the employers to show that the reason for the dismissal was a potentially fair reason within the meaning of section 98 of the Act, did not accept either the employers' assertion that the claimant's dismissal was because of a breakdown in relationships between the claimant and a colleague or the claimant's case that she had been dismissed for making a protected disclosure, but concluded that the reasons for the dismissal were the loss of temper by the head of regional affairs when he interviewed the claimant and his failure to act on advice to follow a formal procedure prior to dismissing her. The tribunal, accordingly, rejected the claim that the dismissal was automatically unfair under section 103A, while finding that the dismissal was unfair pursuant to section 98 and section 98A of the 1996 Act.

The claimant appealed.

The Employment Appeal Tribunal held:
Where a claimant raised a prima facie case that the reason for her dismissal was that she had made a protected disclosure the onus then lay on the employer to prove his reason for the dismissal. While failure by the employer to establish his reason did not automatically result in a finding of unfair dismissal under section 103A of the Employment Rights Act 1996, rejection of his reason, coupled with the claimant's prima facie case, entitled the tribunal to infer that the protected disclosure was the true reason, though it still remained open to the employer to satisfy the tribunal that it was not the reason, or not the principal reason, for the dismissal. It was not at any stage for the claimant to prove the section 103A reason. As it was unclear from the tribunal's reasons that they had so applied the burden of proof, the case would be remitted for reconsideration.

The appeal was allowed and the case remitted.

Appearances: Ruth Downing (B P Collins, Gerrards Cross) for the claimant; John Bowers QC (Clarkslegal, Reading) for the employers.