British Home Stores (BHS) v Burchell – misconduct and unfair dismissal

by Laurie Anstis on February 13, 2013

One of the most significant cases in employment law is British Home Stores v Burchell. That case sets out some of the principles that an employment tribunal should follow in deciding whether a dismissal for misconduct is fair or unfair.

In that case, the judge said that what the employment tribunal had to decide was not whether the employee was actually guilty of misconduct or not, but instead was:

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, and

3. Whether it had carried out as much investigation as was reasonable in the circumstances of the particular case.

This has come to be known as the “Burchell test”, and is sometimes shortened to a genuine belief, on reasonable grounds, after a reasonable investigation.

This isn’t all that there is to a misconduct unfair dismissal claim. The employment tribunal will still have to consider whether the ACAS Code of Practice on Disciplinary and Grievance Procedures was followed by the employer, and whether or not the misconduct was so serious that a reasonable employer could have dismissed the employee for it. There may also be some special features of the particular case to be considered. However, it remains the single most important case on the question of the fairness of a dismissal for misconduct.

There are other types of claim, such as a wrongful dismissal (or breach of contract) claim, where the employment tribunal will have to decide whether or not the employee was employee was actually guilty of misconduct. However in an unfair dismissal case the focus is on the employer’s decision, and not whether the employee actually committed the misconduct they were accused of.

The full judgment in the British Home Stores v Burchell case is here, and I’ve set out below the extract that is most usually cited from it. I’ve deleted from this extract some sections on the burden of proof which no longer apply:

“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, 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 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 them, 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.”

As always, corrections and clarifications are welcome in the comments.

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One comment

[…] For instance, in cases where there is a dismissal for misconduct, a combination of the Burchell case and the so-called “range of reasonable responses” test can mean that a dismissal […]

by Unfair dismissal | Work/Life/Law on 13 February 2013 at 8:17 pm. #