Employment Law Cases

Burchell questioned?

The President of the Supreme Court has appeared to question the continuing relevance of the Burchell test in misconduct dismissals.

For almost 40 years, the well-known test in British Homes Stores Ltd v Burchell has been applied by tribunals to conduct dismissals. As a reminder, the EAT in Burchell said that a three-fold test applies:

  1. The employer must show it believed the employee is guilty of misconduct.
  2. The employer must have reasonable grounds to sustain such a belief.
  3. The employer must carry out as much investigation into the matter as is reasonable in the circumstances.

In other words, an employer doesn’t need to have conclusive direct proof of any misconduct, only a genuine and reasonable belief.

In Reilly v Sandwell MBC the Supreme Court held that it was reasonable for a school’s disciplinary panel to conclude that their head teacher’s non-disclosure of her friendship with a man convicted of making indecent images of children merited her dismissal for misconduct.

It is not the result of the case as such which has attracted attention but rather the comments of Lady Hale, President of the Supreme Court, who delivered a concurring judgment. She remarked that the case might have presented an opportunity for the court to consider two points of law of general public importance, had it been presented differently:

  1. Can a dismissal based on an employee’s conduct can ever be fair if that conduct is not in breach of the employee’s contract of employment?
  2. Does the approach laid down by the EAT in Burchell remain good law?

In her opinion it was not difficult to think of arguments on either side of both questions, but she declined to express any view.