Burden of Proof in Automatic Unfair Dismissal Claims

by Julie Bann and Adrian Hoggarth

In this case, the University of Bolton undertook a redundancy exercise and dismissed the claimant ostensibly for that reason. It appeared that some vacancies, which had been earmarked as suitable alternative employment, were removed from the final structure following a vote of no confidence in management over the handling of the reorganisation. The claimant argued that he had been automatically unfairly dismissed because of his trade union activities, and the Employment Tribunal agreed. They held that because the employer had failed to establish that the reason for dismissal was redundancy, the claimant succeeded in his automatic unfair dismissal claim.

The EAT rejected this decision and held that it does not follow that a claimant will succeed in his argument that he was automatically unfairly dismissed for trade union activities just because the employer did not establish that this was a redundancy dismissal. The EAT confirmed that in ordinary unfair dismissal claims, the claimant will succeed if the employer fails to show that the dismissal was for a potentially fair reason.  However, in cases where the employee is arguing that there was an alternative reason for dismissal that would constitute automatic unfair dismissal, there is no automatic assumption that this must be correct. The Employment Tribunal must still assess whether there is sufficient evidence to establish that the reason for dismissal was, as in this case, the claimant’s trade union activities.  In this case there was no such evidence.