Employers facing an ordinary unfair dismissal claim will be familiar with the principle that the burden of proof lies with them to demonstrate a fair reason for dismissal and that claims for ordinary unfair dismissal require the Claimant to have two years' qualifying service. However, there is a statutory exception which disapplies the two year rule where the Claimant brings an unfair dismissal claim on grounds which include, but are not limited to, dismissal relating to health and safety reasons, exercising the statutory right to time off or on grounds of having made a protected disclosure.
The change in the period of qualifying service from one year to two years is likely to see an increase in Claimants alleging that they have been unfairly dismissed for one of the reasons set out in the statutory exemption. However, if that happens where does the burden of proof lie?
In a recent Employment Appeal Tribunal (EAT) decision, Ross v Eddie Stobart Ltd, the Claimant, who did not have the requisite qualifying service, alleged that he had been unfairly dismissed on health and safety grounds, relating to his working time rights and on grounds that he had made two protected disclosures. Whilst the Employment Tribunal (ET) found that the Claimant had made protected disclosures it placed the burden of proof on him and found that he had not demonstrated that he had been dismissed because of the protected disclosures. The ET found the reason the Claimant was dismissed was a separate conduct issue. The Claimant appealed to the EAT arguing that the burden of proof was on the Respondent to demonstrate a fair reason for dismissal. The EAT disagreed and found that where an employee had insufficient service to bring a claim of ordinary unfair dismissal the burden of proof was on him to demonstrate that his dismissal was for an automatically unfair reason.
Whilst this case provides a useful reminder to employers dismissing employees with less than two years service that the burden of proof will be on the employee to demonstrate that his or her dismissal is for an automatically unfair reason, employers should still bear in mind that they cannot dismiss employees with less than two years service for a discriminatory reason or a reason set out in the statutory exemption.