Maund v Penwith District Council: CA 1984

The employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that. The EAT disagreed.
Held: The appeal against the decision of the EAT failed.
Griffiths LJ said: ‘If an employer produces evidence to the Tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubts upon the employer’s reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them.
But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.’ and in discussing the authorities: ‘To my mind, these passages, and many others, show beyond peradventure that the tribunal was applying its mind to the real issue raised in this case, namely, whether or not the employee was dismissed for redundancy or whether redundancy was merely the pretext that cloaked his dismissal because of his union activities.’
Purchas LJ said: ‘As my Lord has already said, clearly Parliament was not extending an open invitation to an employee who was angry at being dismissed to raise frivolous, imaginary or unsubstantiated allegations against his employer; and where that employer is a public body, a local authority, the bona fide performance of their duties by the members of that authority. With respect, I agree with Lord Justice Griffiths in criticising the description of the effect of an apparently properly arrived at resolution by a responsible body as being of little weight. In my judgment the onus that rests upon the employee is to show that there is an issue which warrants investigation existing, against which an alternative reason, or competing reason, may be established. I emphasise that the onus resting upon the employee is not to prove, on a balance of probabilities, that his contending reason is the principal reason, but he must prove, on the basis of probabilities, that the issue exists. The gravity of the accusations, if any, involved in raising the issue will reflect upon the quality of the evidence necessary to establish the existence of the issue. Once the employee has adduced evidence to establish, on the balance of probabilities, the existence of the issue, the onus of showing which of the two competing reasons, or more if there are more, is the principal reason, remains as it always had been, on the shoulders of the employer. If the exercise being carried out by the Industrial Tribunal, and reported in paragraphs 19 and 25 of their reasons, had been confined to a consideration of the question: Had the applicant established the existence of the issue? – then they would, in my judgment, have been correct in looking at the evidence to see whether the applicant had established the existence of the issue.’
Griffiths LJ, Purchas LJ
[1984] ICR 143, [1984] IRLR 129
Employment Protection (Consolidation) Act 1978
Citing:
ApprovedSmith 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 . .
[1978] IRLR 413, [1978] ICR 996

Cited by:
CitedAssociated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
[2006] UKEAT 0057 – 06 – 3103, UKEAT/0057/06 and UKEAT/0130/06, [2006] IRLR 576
CitedKuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
[2008] EWCA Civ 380, [2008] ICR 799, [2008] IRLR 530
CitedRoss 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 . .
[2013] UKEAT 0068 – 13 – 0808

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.276824