The burden of proof in an unfair dismissal case will depend on whether the employer terminated the employment, or the employee resigned.
If the employer terminated the employment, then the burden of proof rests with the employer. He must prove he had substantial grounds for the dismissal.
6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
This places the burden of proof firmly on the employer who must discharge that burden by showing the substantial grounds which justified the dismissal.
In a constructive dismissal case-that is, where the employee terminates the employment relationship-the employee has the burden of proof.
Unfair dismissals act 1977
Constructive dismissal is defined in section 1 of the Unfair Dismissals act 1977 as
( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,
He/she must prove that the conduct of the employer was such that it was reasonable for the employee to terminate the contract of employment. The employee will generally need to prove that the employer has behaved in a way which essentially repudiates the contract of employment.
These two tests-the conduct test and the breach of contract test-will need to be passed by the employee. Thus, the employee has the burden of proof in a constructive dismissal case.
Unfair dismissal burden of proof-practical considerations
In practical terms it is much easier for any party to let the other side bear the burden of proof. Therefore, it is far more likely an employee will win an unfair dismissal case if the employer has terminated the employment.
And it is much easier for the employer to win if the employee leaves and brings a case for constructive dismissal.
If the employee does not exhaust the internal grievance or other procedures before quitting his success will face an extremely high hurdle and is almost certain to fail.
So, whether you are an employer or employee do not overlook the significant question of ‘who will bear the burden of proof if I take this step?’ This should be a big factor in your decision as to how to act if the employment relationship is on rocky ground.