"The Law Changed 33 Years Ago and They Should Get With It"

05 Nov

In cases concerning dismissal for misconduct, it is almost unthinkable that at some point, reference will not be made to the Burchell guidelines, taken from the well-known case of British Home Stores Limited v Burchell decided in 1978.

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In cases concerning dismissal for misconduct, it is almost unthinkable that at some point, reference will not be made to the Burchell guidelines, taken from the well-known case of British Home Stores Limited v Burchell decided in 1978. Those guidelines tell us that it is for the respondent employer to show first, that it believed the employee to be guilty of misconduct; second, that there were reasonable grounds to sustain that belief; and third, that at the time it formed that belief, it had carried out as much investigation into the matter as was reasonable in the circumstances of the case.

Except that it isn’t.

In principle, the Burchell guidelines apply as much today as they did then, but back in 1978, the employer bore a burden of proving both the reason for dismissal and the reasonableness of the dismissal. The employer still bears the burden of proving the reason for dismissal. But in 1980, the Employment Act removed the burden of proving reasonableness. The reasonableness test, now provided by section 98(4), imposes a neutral burden: the respondent employer doesn’t have to prove reasonableness and the claimant employee doesn’t have to prove unreasonableness.

Even so, the Burchell guidelines in their unmodified form are still quoted to employment tribunals today. In some cases, they are adopted by employment tribunals, also in their unqualified form. This is an error, and one that has dogged the Employment Appeal Tribunal and the Court of Appeal since the law changed.

The latest example is the subject of the judgment of HHJ McMullen QC in Singh v DHL Services Limited, handed down last month. Judge McMullen QC refers to past cases where point has been clarified but notes that this is the second case in his list that day where the unqualified formulation has been used. The judge’s parting shot is this: “…it is with great dismay that we have yet again to repeat to employment tribunals that the law changed 33 years ago and they should get with it”.

For advice and representation in misconduct and all other dismissal cases, speak to our employment team.

Peter Savill

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