Siobhan Murphy
Posted on 30 Nov 2021

When can an Employment Tribunal resort to the burden of proof when deciding a disputed issue of fact?


The Claimant was employed by the Respondent as a delivery driver. On 27 December 2019, a manager reported that he saw the Claimant smoking behind the wheel when driving on the motorway. It was common ground that such conduct would be a serious breach of the Respondent’s smoking policy, which identified that it may attract the sanction of dismissal.

Following an internal disciplinary investigation and process, the Claimant was found to have been smoking whilst driving. He was summarily dismissed without notice. Throughout the investigation, the Claimant denied the allegation. In response to his dismissal, the Claimant brought proceedings in the Employment Tribunal ("ET") for wrongful dismissal and unfair dismissal.

What is wrongful dismissal?

Wrongful dismissal is a dismissal in breach of contract. The sole question is whether the terms of the employee's contract of employment have been breached. The employee will have a claim in damages if the employer, in dismissing them, breached the contract and caused them loss. A common type of wrongful dismissal claim is where an employee has been summarily dismissed and is claiming their contractual notice pay on the basis that their employer was not entitled to dismiss them without notice.

What did the ET decide in this claim?

The ET found that the Claimant was not unfairly dismissed. In considering the Claimant's claim for wrongful dismissal, the Judge held that to dismiss the claim, she must first be satisfied that the Claimant was smoking in the lorry. She considered that the burden of proof was on the Respondent to satisfy her, on the balance of probabilities, that the Claimant was guilty of the alleged misconduct.

As is often the case, the Respondent did not call the manager who witnessed the Claimant smoking as a witness in the proceedings. However, there was a statement from him included in the bundle. The Judge held that, because the Respondent had not called anyone who was an actual witness to the events on 27 December 2019, she was unable to evaluate their credibility against that of the Claimant. It was held that the documentary evidence fell "far short of [her] being able to find as a fact that the Claimant was, on the balance of probabilities, smoking on 27th December 2019."

As such, the ET upheld the Claimant’s claim of wrongful dismissal. The Respondent appealed to the Employment Appeal Tribunal (EAT) on the basis that the Judge had erred in law by "falling back" on the burden of proof and improperly discounting documentary and hearsay evidence.

What is the law on the burden of proof?

It is not uncommon for an ET Judge to be asked to make a finding of fact based on disputed facts. Where the evidence pointing in either direction is evenly matched, and there is no way to choose or decide, then the burden of proof is essentially the tie breaker. The party asserting the factual proposition in question, in this case being that the Claimant was smoking, will not have shown it probably to be the case, and so the party who bore the burden in respect of the matter will lose. This is known as resorting to the burden of proof.

The case of Stephens v Cannon [2005] EWCA Civ 222 confirmed that an ET should not resort to the burden of proof except in exceptional circumstances. The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue. A Court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so.

In very few cases, the fact of the endeavour and the reasons for the conclusion will readily be inferred from the circumstances and so there will be no need for the ET to explain the reasons in any detail in its judgment. In most cases, however, a more detailed demonstration and explanation in the judgment will be necessary.

What did the EAT decide?

The EAT considered whether the exceptional circumstances, as described in Stephens, had been met to entitle the Judge to fall back on the burden of proof without providing an explanation as to why this was done. It held that there was not anything to suggest that the Judge was of the view that this was a case where the evidence pointing either way was equally compelling, or equally problematic, leaving her simply unable to make a decision either way on the factual issue.

As such, the Judge had fallen into an error of principle in her approach to the evidence. The ET should have sought to evaluate the hearsay evidence of the statements that had been gathered from the witnesses and considered as part of the disciplinary process. There was no rule that oral evidence given and tested at trial, must always 'trump' opposing documentary or hearsay evidence.

What can employers take from this?

In complex cases, the ET's original judgment had the potential of placing pressure on Respondents to call several witnesses (who may not have been particularly involved in the decision-making process) to give evidence to avoid the risk of failing to discharge the burden of proof. This, in turn, could have significant cost implications. As such, the EAT's decision is a welcome one for employers.