UNFAIR DISMISSAL

Kuzel v Roche Products Ltd: [2008] EWCA Civ 380

CA: Mummery, Arden and Longmore LJJ: 17 April 2008

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 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. The Employment Appeal Tribunal found that the tribunal’s reasoning for rejecting the claimant’s case under section 103A was insufficient and remitted the case for reconsideration.

The claimant appealed on the ground that, once the employment tribunal had rejected the employers’ reason for dismissal, it was bound to accept the claimant’s case that she had been dismissed for making a protected disclosure, and the employers cross-appealed for reinstatement of the tribunal’s order dismissing the protected disclosure claim.

The Court of Appeal held:
The unfair dismissal provisions in Part X of the Employment Rights Act 1996, which included the inserted protected disclosure provision in section 103A, presupposed that, in order for the tribunal to establish whether within section 98(1) the dismissal was fair or unfair, it was necessary for it to identify only one reason or one principal reason for the dismissal. That reason was a question of fact for the employment tribunal as a matter of direct evidence or of inference from primary facts established by evidence. While it was for the employer to show the reason and whether it was fair or was justified, the employee might assert that there was a different reason for the dismissal, such as the making of protected disclosures, and would have to provide evidence in support but he was not obliged to prove that the dismissal was for that different reason in order to succeed in his claim. If the employer failed to satisfy the tribunal as to its reason for the dismissal, it was open to the tribunal to find that the reason was as asserted by the employee, but it was not obliged to do so and might conclude on a consideration of all the evidence that the true reason for the dismissal was not that advanced by either side. In the circumstances, the employment tribunal had been entitled to find that the reason for the claimant’s dismissal was not that contended for by either side but was the claimant’s line manager’s loss of temper and failure to follow advice. The employment tribunal had made no error of law and its decision would be reinstated.

The appeal was dismissed and the cross-appeal was allowed.

Appearances: Thomas Linden QC and James Laddie (B P Collins, Gerrards Cross) for the claimant; John Bowers QC and Jeremy Lewis (Clarkslegal LLP, Reading) for the employers.