The claimant appealed against the dismissal of his unfair dismissal application. Not having two years continuous employment he had claimed the protection of section 100 as a whistleblower, but the Tribunal had found that there had been a Health and Safety Committee where he could have made known his concerns about the long hours being worked, internally, and his claim for protection was lost under section 103. He had not known of its existence.
Held: The finding was not perverse in law. Once the employer has established that because the employee has not the necessary two years’ qualifying service then it is for the employee to bring himself within s.108(3) which like paragraph 11 of Schedule I to the 1974 Act and like s.64(3) of the 1978 Act, is an exceptions subsection. The burden of proof lies on the employee to bring himself within the exception.
Judges:
C Smith QC
Citations:
[1998] UKEAT 499 – 97 – 2201
Links:
Statutes:
Employment Rights Act 1996 100(1) 108(1)
Jurisdiction:
England and Wales
Citing:
Cited – Smith v Hayle Town Council CA 1978
In a case on the issue of sufficiency of qualifying service for bringing an ordinary case of unfair dismissal, the court considered the allocation of the burden of proof in employment cases.
Held: The burden is upon he who is seeking to rely . .
Cited – Tedeschi v Hosiden Besson Ltd EAT 2-Oct-1996
. .
Cited – Shanon v Michelin (Belfast) Limited CANI 1981
The absence of an appeal procedure does not of itself make a dismissal unfair, even in the case of dismissal for misconduct.
Lord Justice O’Donnell said: ‘There had been at one time at final stage of the procedure where the dismissal was . .
Cited – Tedeschi v Hosiden Besson Ltd EAT 2-Oct-1996
. .
Cited by:
Cited – Ross v Eddie Stobart Ltd (Unfair Dismissal : Automatically Unfair Reasons) EAT 8-Aug-2013
EAT UNFAIR DISMISSAL – Automatically unfair reasons
Burden of proving the ‘whistleblowing’ reason for dismissal under s.103A Employment Rights Act 1996 lies on the employee who has insufficient continuous . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 16 June 2022; Ref: scu.206038