Key Cases: British Home Stores v Burchell

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Key Cases: British Home Stores v Burchell

The Burchell Test: British Home Stores v Burchell [1978] IRLR 379[1] 

When a tribunal is trying to decide whether a dismissal for misconduct is fair or unfair a case that they will almost certainly look at is that of BHS v Burchell which is the basis for the Burchell Test. In this case an employee was dismissed for various misconduct reasons, which in this instance are not important for the points that the Employment Appeal Tribunal went on to make as they went on to explain that a tribunal is not there to consider whether the employee was actually guilty of the misconduct when determining whether the dismissal was fair.

In this appeal the most important extract of what was said is laid out below.

“What the tribunal has to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, … the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation in the matter as was reasonable in all the circumstances of the case…

It is not relevant, as we think, that the tribunal would itself share that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them.”

Key Elements of the Test

This statement although seeming a bit lengthy at first can be boiled down into 3 pertinent questions/points.

  1. Whether the employer actually believed that the employee was guilty of misconduct
  2. Whether it had reasonable grounds on which to base that belief
  3. Whether it had carried out as much investigation as was reasonable in the circumstances of the particular case.

A fourth point that has already been mentioned above is that the Tribunal is not there to judge the merit of the evidence that the employer had available to them but instead look at the three questions that it raised in its judgment.

If it is shown that all three points are positive then it is a significant possibility that the tribunal will be able to decide that it is a fair decision to dismiss.  Although the employer will then have to go on to show that the decision to dismiss was within the range of reasonable responses for that misconduct.

The Tribunal did say that it was up to the employer to show that the test was satisfied it has now been decided that this burden is not on the employer or the employee but rather it is a neutral burden.[2]