Determining the true reason for dismissal 

The EAT has confirmed the approach employment tribunals should take when determining the true reason for an employee’s dismissal in Gary Lewis v Dow Silicones UK Limited. 

Previously, in Kuzel v Roche Products Ltd, Lord Justice Mummery provided guidance on how to consider a claim for automatic unfair dismissal. These principles, some of which can be read below, are applied generally in dismissal cases (see paragraphs 41-61 of the Kuzel Judgment with my emphasis added): 

• “…the reason…for a dismissal is a question of fact for the ET. As such it is a matter of either direct evidence or of inference from primary facts established by evidence.

• …when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case…This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for a different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.

• Having heard the evidence of both sides relating to the reason of the dismissal, it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.

• The ET must then decide what was the reason for the dismissal on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was.” 

The crux of many employment cases is the reason for the action of one of the parties. In an unfair dismissal context, the employer must always be able to justify the reason for its action. 

Gary Lewis v Dow Silicones UK Limited is a case on this very point. It involved a claim for automatic unfair dismissal relating to an outsourcing arrangement. Mr Lewis argued he was dismissed in connection with the outsourcing arrangement. Dow Silicones argued he was dismissed for a health reason and not the business transfer – the distinction is important. 

The EAT, which disagreed with the ET, found that the only possible outcome based on Dow Silicones’ own case and the evidence before it, was that Mr Lewis’ dismissal was related to the outsourcing arrangement, and so his dismissal was automatically unfair.  

This blog was written by Ben Lindsay, Solicitor at didlaw.