British Home Stores Ltd v Burchell: EAT 1978

B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her.
Held: The company’s appeal was allowed. The store had reasonable grounds for its belief that the employee had conducted herself dishonestly.
The tribunal had confused the distinction between the sort of evidence which can justify a reasonable conclusion of management, and the sort of evidence of a quite different standard which a prosecuting officer, such as a superintendent of police, would regard as sufficient to place before a magistrate or a jury.
The court gave guidance on the tests to be applied when considering a dismissal of an employee without a disciplinary hearing for dishonesty.
Arnold J said: ‘What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground 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, there must be established by the employer 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 into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would itself have shared 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 him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.’ and
‘What one there finds, as it seems to us, is the undisputed fact that management did form the belief that Miss Burchell was guilty; that the matters which went into that belief were what had emerged from the examination of the docket signing pattern, what Mrs L had said (though very unspecifically), and Miss Burchell’s denial of the equally unspecific retailing of that to her; and the matter of the sun-glasses, where she had accepted, according to the evidence as found by the Tribunal, that she knew that Mrs L was getting the goods too cheap. The question which had to be determined by the Tribunal was, as we think, quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing. It seems to us impossible to answer that question except in the affirmative.
What seems to have happened here, as we read the Decision, is that having, as we have already mentioned, started out by stating the function of the Tribunal with accuracy, they then were in the course of their observations or considerations – perhaps very humanely with some degree of sympathy with the young applicant, not professionally represented, and an anxiety to see that she got a fair crack of the whip – departing from the task which they had set themselves, and that they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether management could reasonably have drawn the conclusion which management in fact drew, but whether that was by an objective standard a correct and justifiable conclusion. And moreover they were led into examining the matter from the point of the standard of proof which could be derived from the matters which had been stated, which were known to management, in order to see whether the conclusion was justified. There are extensive citations from the well known case of Hornal v Neuberger Products Ltd (1956) in which the Court of Appeal considered in great particularity different standards of proof – or, perhaps more accurately put, whether there was a different standard of proof – in a civil case on the one hand and in a criminal case on the other. That, as we think, had absolutely nothing whatever to do with the proper task of the Tribunal, which had throughout to do that which this Tribunal initially embarked on doing, which was to examine the reasonableness or otherwise of the conclusion reached by management.
They also, it seems to us, became confused along the line between the two somewhat distinct tasks of investigating whether the conclusion of management was a reasonable conclusion on the basis of the material which they had before them and whether, in assembling that material, management had carried out the sort of investigation which a reasonable management could have regarded as sufficient. At the end of the day, no doubt, the two things run close and parallel; but they are distinct.’

Arnold J
[1980] ICR 303, (1978) IRLR 379, [1978] UKEAT 108 – 78 – 2007, (1978) 13 ITR 560
England and Wales
CitedHornal v Neuberger Products Ltd CA 1956
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The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
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See AlsoNelson v British Broadcasting Corporation CA 1977
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .

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CitedDPP Law Ltd v Greenberg CA 7-May-2021
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Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.181092