Who Bears the Burden of Proof in Dismissal Disputes?

In UK employment law, dismissal disputes frequently turn on a key procedural issue: who must prove what. This is known as the burden of proof. In unfair dismissal and related tribunal claims, the burden does not remain with one party throughout; it shifts depending on the stage of the case and the legal issue being considered.

The rules governing burden of proof are primarily shaped by the Employment Rights Act 1996 and developed through Employment Tribunal practice and case law. Understanding how the burden operates is essential because it often determines whether a claim succeeds or fails.

This article explains who bears the burden of proof in dismissal disputes, how it shifts between employee and employer, and how tribunals apply legal tests in practice.

What the burden of proof means in dismissal cases

The burden of proof refers to the obligation to prove a fact or legal argument to the tribunal.

In dismissal disputes, it determines:

• who must prove the reason for dismissal
• who must show whether the dismissal was fair or unfair
• how evidence is assessed where facts are disputed

The tribunal decides cases on the balance of probabilities, meaning something is more likely than not to have happened.

The general rule in unfair dismissal claims

Step 1: The employee establishes dismissal

In an unfair dismissal claim, the starting point is usually the employee. They must show:

• that they were dismissed (or constructively dismissed), and
• that the claim falls within tribunal jurisdiction

This is generally a low threshold and often straightforward.

Step 2: The employer bears the main burden

Once dismissal is established, the employer carries the primary burden of proof.

They must show:

• the reason for dismissal, and
• that the reason is one of the potentially fair reasons under section 98 of the Employment Rights Act 1996, such as:
  • conduct
  • capability
  • redundancy
  • statutory restriction
  • some other substantial reason

If the employer cannot prove a lawful reason, the dismissal is automatically unfair.

The fairness test: shifting burdens in practice

Even where the employer proves a potentially fair reason, the tribunal then considers fairness under section 98(4) of the Employment Rights Act 1996.

At this stage:

• the tribunal applies an objective standard of reasonableness
• the burden is not strictly on either party
• both sides must present evidence on process and fairness

The tribunal assesses whether dismissal was within the range of reasonable responses.

Burden of proof in disciplinary dismissal cases

In misconduct cases, the employer must prove:

• they genuinely believed the employee committed misconduct
• they had reasonable grounds for that belief
• they carried out a reasonable investigation

This principle is often referred to as the “Burchell test”, from British Home Stores Ltd v Burchell.

The employee may then challenge:

• the adequacy of the investigation
• whether the decision was reasonable
• whether dismissal was proportionate

Burden of proof in capability and performance dismissals

Where dismissal is based on capability:

The employer must show:

• genuine concerns about performance or health
• reasonable support or warnings were given
• fair procedures were followed

The employee may rebut by showing:

• inadequate training or support
• unfair appraisal processes
• inconsistent treatment

Burden of proof in redundancy dismissals

In redundancy cases:

The employer must prove:

• a genuine redundancy situation existed
• the selection pool was reasonable
• fair selection criteria were applied
• suitable alternative employment was considered

Once these are shown, the employee may challenge:

• whether redundancy was genuine
• whether selection was fair or discriminatory

Constructive dismissal and burden of proof

In constructive dismissal claims, the burden initially lies with the employee.

They must prove:

• the employer committed a fundamental breach of contract
• they resigned in response to that breach
• they did not affirm the contract

Once established, the employer may argue:

• no breach occurred
• the employee resigned for unrelated reasons
• conduct did not amount to repudiatory breach

Constructive dismissal cases are therefore more employee-intensive at the outset.

Discrimination and automatically unfair dismissal claims

Discrimination-linked dismissals

In cases involving discrimination under the Equality Act 2010, the burden operates differently.

The employee must show facts from which discrimination could be inferred. If they do so, the burden shifts to the employer to prove:

• the dismissal was not discriminatory, or
• it was based on a lawful justification

Automatically unfair dismissal

For claims such as:

• whistleblowing dismissal
• dismissal for asserting statutory rights
• pregnancy-related dismissal

The employee must show a causal link between the protected reason and dismissal.

Once established, the dismissal is automatically unfair, and the employer must disprove that the protected reason was the cause.

Burden of proof in procedural fairness

Even if an employer proves a fair reason for dismissal, they must also show a fair process was followed.

This includes:

• investigation procedures
• disciplinary hearings
• appeal processes

The employer is expected to demonstrate compliance with the Acas Code of Practice on Disciplinary and Grievance Procedures. Failure to follow it may increase liability or compensation.

Evidence and the practical burden in tribunal hearings

Although legal burdens exist, in practice both parties must provide evidence.

Typical evidence includes:

• witness statements
• employment contracts
• disciplinary records
• emails and internal communications
• HR policies and procedures

Tribunals do not assume facts; they rely on the quality and credibility of evidence presented.

Common misconceptions about burden of proof

“The employee must prove everything”

Incorrect. The employer carries the main burden to justify dismissal.

“The employer must disprove unfairness”

Not entirely correct. The employer must prove the reason for dismissal and fairness, but the tribunal makes the final assessment.

“Burden of proof stays with one side”

Incorrect. It shifts depending on the legal issue being considered.

Why burden of proof matters in dismissal disputes

The allocation of burden affects:

• the likelihood of success in tribunal claims
• the strength of employer documentation
• litigation strategy for both parties
• settlement negotiations and compensation outcomes

Employers with poor documentation are often at a disadvantage because they cannot discharge their evidential burden.

Key Takeaways

In UK dismissal disputes, the burden of proof is shared and shifts depending on the stage of the case. The employee must first establish dismissal, after which the employer must prove a fair reason and procedural fairness under the Employment Rights Act 1996. In misconduct, redundancy, and capability cases, employers carry significant evidential responsibility. In constructive dismissal, discrimination, and whistleblowing claims, the burden shifts dynamically based on the issues raised. Ultimately, tribunals decide cases on the balance of probabilities, relying heavily on the strength of evidence from both sides.