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
Bailii
England and Wales
Citing:
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
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.
Held: The standard was the balance of . .
See Also – Nelson 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 . .
Cited by:
Cited – Mark John Donnelly, David Andrew Mcharg, (3)James Dean Murray v Charnos Plc EAT 27-Sep-2001
The employees appealed the loss of their case for unfair dismissal. They asserted that the investigation made before the decision to dismiss was made, was inadequate. The EAT was concerned at the apparent weakness of the employer’s investigation, . .
Cited – C Lo Sterzo v London Borough of Lewisham EAT 2-Oct-2000
The applicant had been dismissed for gross misconduct in his supervision of building works carried out for his respondent employer. He appealed dismissal of his claim on the basis that no tribunal could properly find the employers decision to be . .
Cited – Meakin v Liverpool City Council, Leisure Services Directorate EAT 28-Sep-2001
The applicant had worked for the respondent for many years. He was alleged to have been involved in a fight on the premises, and under the applicable policy, this was gross misconduct. He was dismissed, and appealed a finding against his unfair . .
Cited – Paul Michaels v Sbs Worldwide Ltd EAT 23-Nov-2001
The appellant appealed dismissal of his claims for unfair and wrongful dismissal. The tribunals reasons for its decision was short. In particular the reasons did not disclose the view taken by the tribunal of allegations about the procedure . .
Applied – Panama v London Borough of Hackney CA 17-Feb-2003
The claimant appealed from dismissal of her claim of unfair dismissal. She had been dismissed without a disciplinary hearing.
Held: The tribunal had asked only what might have been the outcome of a disciplinary hearing. Applying Burchell, it . .
Distinguished – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Capitol Security Services Ltd v T J Lloyd EAT 21-Apr-1998
EAT Unfair Dismissal – Procedural Fairness
Mr Lloyd had been dismissed on allegations of intimidation and discrimination. Neither at the first hearing nor on appeal was he told of the findings of fact upon . .
Cited – Andrew Porter v Oakbank School OHCS 19-Mar-2004
. .
Cited – Ritchie and Another v Associated Co-Operative Creameries and Another NIIT 3-Feb-2002
Unfair Dismissal . .
Cited – Rea v Sheridan Millennium Ltd FENI 15-Feb-2005
. .
Cited – Dolan v Smyth (T/A Roslea Oil Service) (Unfair Dismissal) NIIT 11-Nov-2003
. .
Cited – Marlowe Child and Family Services Ltd v Mcintosh EAT 21-Oct-2002
. .
Cited – Airbus UK Ltd v MG Webb CA 7-Feb-2008
The court considered the dismissal by an employer of an employee for a disciplinary offence when he would not have been dismissed but for an earlier warning which had expired.
Held: The company’s appeal succeded. The court summarised the . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Cited – Epstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Cited – Santamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
Cited – Linfood Cash and Carry v Thomson EAT 1989
One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the . .
Cited – Ramsey, Hamblet and Treweeke v Walker Snack Foods Ltd, D McDonnell EAT 13-Feb-2004
Three employees appealed decisions that they had not been unfairly dismissed. The employer had suspected them of involvement in a scam involving the diversion of prize-winning crisp packets. Informants had insisted on remaining anonymous. The . .
Cited – Harding v Hampshire County Council EAT 10-May-2005
EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
Approved – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited – Mars UK Ltd T/A Masterfoods v K Parker EAT 24-Oct-2005
EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act . .
Cited – Strouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Cited – Knight v Treherne Care and Consultancy Ltd EAT 15-Apr-2009
EAT UNFAIR DISMISSAL
The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Bashir and Another v Sheffield Teaching Hospital NHS Foundation Trust EAT 27-May-2010
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Procedural fairness/automatically unfair dismissal
The Appellants appealed against the Tribunal’s decision that their . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Turner v East Midlands Trains Ltd CA 16-Nov-2012
The employee, a train ticket conductor, was accused without direct evidence of manipulating her machine to produce false tickets which she was then said to have sold.
Held: Elias LJ said that the Tribunal: ‘has to ask whether the employer . .
Cited – Leeks v St George’s Healthcare NHS Trust EAT 22-Oct-2012
EAT Practice and Procedure : Case Management – UNFAIR DISMISSAL – Reasonableness of dismissal
The Respondent was entitled to conclude the Claimant wrongfully handed over HR files of two employees whose . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .
Cited – Clarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
Approved – Weddel and Company v Tepper CA 1980
Whether employer’s belief in employee’s misconduct was reasonable. . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – Shrestha v Genesis Housing Association Ltd CA 18-Feb-2015
The appellant had been dismissed for alleged dishonest expenses claims. He was said to have claimed for more miles travelled than would be calculated by AA or RAC services. He said that ony two such allegations were put to him for explanation, but . .
Cited – Tayside Public Transportcompany Ltd (T/A Travel Dundee) v Reilly SCS 30-May-2012
The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the . .
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Cited – DPP Law Ltd v Greenberg CA 7-May-2021
Respect for ET judgment where prriciples set out
The respondent solicitor, had unlawfully accepted a payment of cash from the father of a criminal Legal Aid client. The firm now appealed from a finding that he had been unlawfully dismissed for gross misconduct.
Held: The appeal succeeded: . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 02 November 2021; Ref: scu.181092