25 August 2010
In unfair dismissal cases, where an employer has established that the employee's dismissal was for one of the potentially fair reasons set out in the Employment Rights Act 1996, whether the dismissal was fair or unfair will depend on whether or not the employer's actions were reasonable in the circumstances. The burden of proof does not rest with either one of the parties involved. The Employment Tribunal (ET) hears the claimant's case that the dismissal was unfair and the employer's explanation of why it was not.
In Bradford & Bingley (B&B) v McCarthy, Mr McCarthy claimed that he had been unfairly dismissed after he was made redundant following a reorganisation in which two jobs were combined. One of the directors, Mr Rowe, had a clear preference for the other candidate for the post and Mr McCarthy claimed that the decision to appoint her and to dismiss him had been made in advance of the selection process.
The ET was satisfied that B&B had in place insufficient safeguards to ensure that the selection process was conducted objectively. Mr Rowe took part in the interview and, because the employer chose not to call other personnel involved in the process to give evidence to the hearing, there remained significant doubt as to whether the selection criteria had been applied fairly. The ET therefore concluded that the dismissal was unfair.
B&B appealed the decision on several grounds. In its view, the ET had fallen into error in imposing a burden of proof on the employer that the dismissal was fair. It had imposed a requirement that the interview process was objective, rather than one that a reasonable employer would have used, and had put a burden on the employer to call particular witnesses.
The EAT dismissed the appeal on these grounds. In such cases, it often happens that the evidence of one party to a dispute points to a particular conclusion. That does not, however, mean that the burden of proof switches to the other party to disprove the evidence. In this case, there was clear evidence of bias in the decision-making process. What the ET was saying was that B&B needed to rebut the evidence pointing to unfairness and had failed to do so. It is a matter of common sense that in the face of evidence that the redundancy process was potentially seriously flawed, the employer was required to demonstrate that the unfairness to Mr McCarthy of the participation in the redundancy selection of Mr Rowe had been overcome.
The case was remitted to the same ET, however, on the ground that the ET had omitted to deal with the question of whether Mr McCarthy would have been selected for redundancy even had proper procedures been followed (ERA Section 98A2).
Contact Nicola Nicolaou, associate in our employment law team, for advice on any dismissal or redundancy matter. Call 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk. |
