Employment Law

If an employee claims he was unfairly dismissed for whistle-blowing, the proper approach is to consider:

(i)   whether the employee has shown that there was a real issue about whether the reason advanced by the employer was not the true reason for the dismissal by advancing a case under s 103A of the Employment Rights Act 1996;

(ii) if so, have the employers proved their reason for dismissal;

(iii) if not, have the employers disproved the s 103A reason advanced by the employee;

(iv) if not, the dismissal was for the s 103A reason.  The employers’ failure to prove the reason relied on does not automatically result in a finding of unfair dismissal under section 103A.  However, rejection of the employers’ reason, coupled with the claimant having raised a prima facie case, entitles the tribunal to infer that the s 103A reason was the true one.

However, it remains open to the employers to satisfy the tribunal that the making of protected disclosures was not