Burden of Proof

2 December 2014
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If an employee chooses to make a claim under the Unfair Dismissal Act 1977, the Tribunal must assume that the employer has unfairly dismissed the employee.

Despite the fact that the employee makes the complaint, the onus is on the employer to prove their case. The employer must establish substantial grounds for the dismissal and prove that he complied rigorously with established policy and procedure. It is very often the case that the employer loses the case because of breach of ‘fair procedure’.

If the case is decided against the employer it is not unusual for awards of €10,000 to €15,000, which is a substantial penalty for a small employer.

The story below highlights the dilemma facing employers:

The employee was dismissed for being under the influence of alcohol at work. The decision in relation to the employee’s condition was based on the assessment of 3 managers who interviewed the employee during the incident.

The decision to dismiss the employee was confirmed following an appeal hearing conducted by an experienced senior manager, who examined the evidence from the initial investigation and conducted an appeal hearing.

The Tribunal found the dismissal to be unfair because the employer’s decision was not based on ‘objective evidence’ and he did not follow ‘fair procedure’:

– Objective evidence

The assessment of the employee’s condition relied on the assessment of the managers rather than seeking medical assessment (blood test) or breathalyser test.

– Fair procedure

The policy and procedures were not provided to the employee in a language which he understood.