To avoid dismissal that is manifestly unreasonable, the employer must be able to prove that an employee's dismissal is linked to his or her fitness or conduct or to the needs of the business. It is not uncommon for an employer to be unable to prove the grounds for dismissal put forward, even if they are real and exist. Here are a few things you can do as an employer to avoid this situation.
When an employee with at least six months' seniority challenges his dismissal, he can demand that his employer prove the grounds put forward. Failure to do so could result in the employer being ordered to pay compensation to the employee.
The rules governing the burden of proof in cases of manifestly unreasonable dismissal stipulate whether it is the employer or the employee who must prove the facts giving rise to the dismissal. In practice, however, both the employer and the employee will each produce evidence in support of their position.
Where the grounds for dismissal relate to the employee's conduct or fitness, there are many types of evidence that will enable the employer to demonstrate that a dismissal was not manifestly unreasonable. Letters of warning sent to the employee concerning the same failings that led to the dismissal constitute solid evidence. The same applies to negative appraisals of the employee; it is always useful to keep a written record of them. Video recordings, written complaints from third parties (such as customers), internal e-mails or evidence of professional misconduct are also useful.
If the employer has not collected any evidence (or too little) of the alleged misconduct during the employment relationship, he can resort to testimonies by means of written attestations. For example, the employer could ask colleagues, customers or suppliers to write statements detailing their negative experiences with the employee concerned. Courts and tribunals may be reluctant to accept statements from colleagues if they consider that their relationship of subordination to the employer providing the statement compromises the reliability of the statement. However, courts and tribunals generally accept attestations from colleagues and attach reliability to them, taking into account the fact that they are often in the best position to testify.
In the case of dismissals for business reasons, it should be noted that the employer must firstly prove the economic or technical reasons, and secondly prove that these reasons were at the root of the dismissal. For example, if an employee is dismissed because his or her position has been eliminated for economic reasons, the employer will have to prove the economic reasons and prove that the employee has not been replaced.
For this type of dismissal, the employer will mainly put forward objective evidence such as a drop in turnover, reorganisation, a change in internal organisation, a drop in orders, sales or activities.
In terms of the courts' review of the grounds for dismissal, the judge's review is limited. Only the manifestly unreasonable nature of the dismissal may be reviewed, and not the appropriateness of the employer's management (i.e. its choice between the various reasonable management alternatives available to it). The judge must therefore restrict himself to checking that the dismissal is not so arbitrary or disproportionate that it is obvious that no normal employer would have taken this decision. For example, in the case of redundancy due to poor sales figures, the judge must in principle only check whether the figures are poor, but not whether they are bad enough to justify redundancy.
Lastly, it is highly advisable to gather a series of pieces of evidence, as often a single piece of evidence will not be decisive. In the case of dismissals linked to conduct or fitness, it is essential to document, throughout the employment relationship, each and every shortcoming of which the employee could be accused. This makes it possible to present a body of evidence to the court which, taken as a whole, makes it possible to conclude that the grounds put forward are proven and that the dismissal was not manifestly unreasonable.
About the authors
Thierry Duquesne, Local Partner at NautaDutilh & Alix de la Barre, Employment Law at NautaDutilh
