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 upon the exception to bring himself within it. The court also considered the weight to be given to notes of a disciplinary meeting.
Eveleigh LJ said: ‘So one comes to consider whether the facts in this case did entitle the industrial tribunal to come to the conclusion that it did, I would have been inclined to think that, when one asks for the reason for corporate action, the action of all concerned in arriving at that decision should be considered and the court should make up its mind, from all the material available, what the corporate mind was thinking. In this particular case certainly one voter voted because of an anti-union prejudice. But can it be said that that should be regarded as the principal reason, or must one be driven to the conclusion – for that is the kind of test we have to apply – that that was the principal reason? It seems to me that, as emphasis is laid in various parts of this Act upon the words ‘principal reason’, the schedule contemplates that there can be other reasons that operate, but they may not be the principal one. From that it follows that there may be some form of anti-union prejudice that could exist, but nonetheless that would not so cloud the issue as to make an anti-union sentiment the principal reason. In my view, bearing in mind the right of appeal is in law only, it is not possible here to say there are no grounds on which an industrial tribunal could come to the conclusion that it did.’
Sir David Cairns said: ‘I think it would be permissible to look at what was said at the meeting in order to see what actuated the minds of those who voted in favour of the resolution. That was done here by the tribunal, and it appears to me that, upon the evidence they had before them, not only was there no compelling evidence that the principal reason for the dismissal was an inadmissible reason but, indeed, the evidence showed that that was not the principal reason. It cannot be that the reason in the mind of one particular man was the principal reason even though his vote may have been decisive.’
Lord Denning MR (minority) said that that the burden lay on the employer.


Eveleigh LJ, Sir David Cairns, Lord Denning MR dissenting


[1978] IRLR 413, [1978] ICR 996


Trades Union and Labour Relations Act 1974


England and Wales

Cited by:

ApprovedMaund 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 . .
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 . .
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 . .
ApprovedMarley Tile Co Ltd v Shaw CA 1980
The employers were a well known roofing and tiling firm, Marley Tiles . The employer sought to impose post employment restrictions including a restriction on canvassing soliciting or dealing with customers in the whole of Devon and Cornwall. Within . .
CitedJackson v ICS Group of Companies Ltd EAT 22-Jan-1998
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 . .
AppliedTedeschi v Hosiden Besson Ltd EAT 2-Oct-1996
. .
Lists of cited by and citing cases may be incomplete.


Updated: 21 August 2022; Ref: scu.336993