||All England Reporter
|| All ER (D) 32 (Mar)
||Employment Appeal Tribunal
Judge Peter Clark, Mr K Edmondson and Mr J Shrigley
||Ruth Downing (instructed by BP Collins Solicitors, Gerrards Cross) for the employee.
||John Bowers QC (instructed by Clarkslegal LLP, Reading) for the employer.
||2 March 2007
Unfair dismissal - Protected disclosure - Burden of proof - Employment tribunal rejecting potentially fair reason for dismissal advanced by employer - Proper approach to burden of proof - Whether tribunal bound to find dismissal due to employee making protected disclosure - , s 103A.
The proper approach to determining where the burden of proof lay in a complaint by an employee, who had sufficient service to qualify for ordinary unfair dismissal protection, that he had been dismissed for making a protected disclosure contrary to s103A of the Employment Rights 1996, was to consider: (i) whether the employee had shown that there was a real issue as to whether the reason advanced by the employer was not the true reason for the dismissal by advancing a case under s103A of the 1996 Act; (ii) if so, had the employer proved its reason for dismissal; (iii) if not, had the employer disproved the s103A reason advanced by the employee; and (iv) if not, the dismissal had been for the s103A reason. At no stage was it for an employee with qualifying service to prove the 103A reason he advanced.
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