Unfair dismissal
Where an employee was dismissed for gross misconduct – but would not have been dismissed but for the fact that he had an expired final written warning on his record – the dismissal was unfair. The result of the expiry of the warning was that he was entitled to be treated as though he had no disciplinary record at all.
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Whistleblowing
To qualify for protection from detriment or dismissal for whistleblowing, a worker must hold a "reasonable belief" that the information disclosed tends to show that a criminal offence will be committed or there will be non-compliance with a legal obligation. However, provided that the worker's honest belief is reasonably held, protection will not be lost merely because he or she is mistaken about the existence of such a criminal offence or legal obligation.
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Where a tribunal has jurisdiction to hear a complaint of unfair dismissal, it is for the employer to prove the reason for the dismissal, even where the employee alleges that the dismissal was for an automatically unfair reason. If the tribunal rejects the reason put forward by the employer, it may infer that the reason is the one argued for by the employee, if he or she has shown at least a prima facie case. However, it will remain open to the employer to persuade the tribunal, on the evidence, that the reason suggested by the employee was not the true reason for the dismissal.
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