Buddy says: The EAT confirmed in Kuzel v Roche Products Limited 2006 that it is for the employer to prove that the protected disclosure was not the reason for dismissal. In the above case, the EAT rejected an argument that because dismissal or victimisation for whistleblowing is a form of discrimination, the "reversal of the burden of proof" rules in the anti-discrimination statutes apply in whistleblowing cases.

Employer information: The EAT in the above case, formulated the correct approach to be followed after noting that section 103A Employment Rights Act 1996 (automatically unfair dismissal) does not expressly set out an approach that Tribunals should take on the burden of proof: 

1. Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent, some other substantial reason, was not the true reason? Has she raised some doubt as to that reason by advancing the s103A reason?
2. If so, has the employer proved his reason for dismissal?
3. If not, has the employer disproved the s103A reason advanced by the Claimant?
4. If not, dismissal is for the s103A reason.

In answering those questions it follows:

(a) that failure by the Respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under s103A;

(b) however, rejection of the employer's reason, coupled with the Claimant having raised a prima facie case that the reason is a s103A reason entitles the Tribunal to infer that the s103A reason is the true reason for dismissal, but

(c) it remains open to the Respondent to satisfy the Tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the Tribunal is not that advanced by the Respondent;

(d) it is not at any stage for the employee (with qualifying service) to prove the s103A reason.