Case Round Up
Whistleblowing
The Employment Appeal Tribunal (EAT) has handed down its decision in the case of Kuzel -v- Roche Products Ltd concerning the burden of proof in whistleblowing cases. Regular readers of the e-alert will be aware that those who have made a protected disclosure, otherwise known as whistleblowing, have certain enhanced rights, including the right not to be treated less favourably, or indeed dismissed, on account of having made the disclosure.
The question at the heart of the case was whether an employee has to prove the reason for the dismissal is that he made a protected disclosure or whether it is for the employer to disprove this. The court clarified the approach that should be taken, reducing it to four steps. A full rehearsal of these steps is outside the ambit of this e-alert, but the basic rule is that those employees with qualifying service will not have to prove that their dismissal was for reasons associated with their protected disclosure.
Instead, if an employer fails to show a potentially fair reason for dismissal, and the ex-employee has claimed that the reason for the dismissal was whistleblowing, the tribunal is entitled to infer that this disclosure was the reason for the dismissal. Nevertheless, the employer may still satisfy the tribunal that the disclosure was not the principal or real reason for the disclosure.
In many senses Kuzel is a sensible decision. It should be noted, however, that the case only relates to those employees with qualifying service for whom the first step would be to consider whether there was a potentially fair reason for dismissal.
Statutory Grievance Procedure
The EAT has resolved the question of whether a statutory grievance procedure applies in cases where the claimant is not advancing a claim of unfair dismissal, but other cause of action such as discrimination. Are such employees required to lodge a step 1 grievance letter and wait 28 days?
The EAT has decided that the answer is no: the statutory grievance procedure does not apply in such circumstances. Consequently, if an employee advances a claim for discrimination arising from a dismissal, there is no obligation to lodge a step 1 grievance letter and, equally no entitled to the three-month extension of time.
While it is good to have clarity in these matters, in the current landscape, with the DTI consulting with a view to abolishing the statutory dismissal and grievance procedures, such clarification may be short lived.