The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell  UKEAT 108_78_2007. It was this case that is the source of the “Burchell Test”, here it is in the judgement itself:
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
- the employer must genuinely believe that the reason for the dismissal is the real reason (usually this means that there is a genuine belief that the employee did do the misconduct); and
- the employer must have reasonable grounds for that belief; and
- In order to reach the above two states of mind the employer must perform a reasonable investigation.
Although not making reference to Burchell a recent case, Burdett v Aviva Employment Services Ltd, asks whether an employee’s dismissal for a clear gross misconduct offence (e.g., violence at work or theft) when they admit that they did the alleged act is fair? Normally, this will be the case. If an employee admits doing an act that is an act of potential gross misconduct (e.g., punching a co-worker) then it will not be a surprise that most disciplinary processes will find that the alleged misconduct is proven! An investigation would nearly always be necessary but not usually an especially onerous one.
However, Burdett is a case I think has the potential to be of use to union reps, the EAT clearly affirmed that the finding by an employer that an employee has committed gross misconduct in these circumstances is not always fair (this is to be distinguished from the separate issue of whether dismissal for proven misconduct is fair).
An employer to meet the second bullet of the Burchell test above must not only be satisfied that an employee committed the act but that they had the intention to do so (or was negligent) – in other words, that they were culpable for the alleged misconduct. This reaffirms the instructions in Sandwell & West Birmingham Hospitals NHS Trust v. Westwood  UKEAT 0032_09_1712 that Gross Misconduct “involves either deliberate wrongdoing or gross negligence”. In other words, to justify a finding of proven misconduct an employer must have reasonable grounds for believing the employee engaged in the misconduct but also that this misconduct wrongdoing was deliberate. In my experience it is a regular, albeit not frequent, suggestion that misconduct is not committed intentionally. A clear cut example would be a shopworker with Tourette’s syndrome who has a complex tic that results in her hitting out and, unintentionally, hitting a customer causing physical injury. There is no doubt that hitting a customer is gross misconduct but here, where if the defence of lack of intention is offered because of disability and there is evidence supporting this no reasonable employer could conclude that there was “deliberate wrongdoing”.
In Burdett the alleged misconduct was that in April 2011 the claimant sexually assaulted two female employees, threatened to assault a security guard who challenged the claimant’s conduct and, upon leaving the workplace, assaulted a member of the public. That the claimant did these acts was not disputed. However, Burdett suffered from a paranoid schizophrenic illness that was controlled by medicine. However, unfortunately he stopped taking that medicine. In his disciplinary process Burdett made clear that he did not dispute that he assaulted or threatened to assault his co-workers and a member of the public but submitted this was not intentional and a direct consequence of his disability (the claimant was in the immediate aftermath of the incident detained under the Mental Health Act).
In the disciplinary hearing the proven nature of the misconduct allegation was assumed, with the decision maker began the meeting with the following observations:
- incidents such as those of 26 April 2011 would “normally result in dismissal for gross misconduct”
- The decision maker’s role was now to determine the appropriate sanction”
In other word’s a proven case of misconduct was assumed. The Employment Tribunal found in favour of the Respondent as follows:
The ET found that the reason for the dismissal was gross misconduct. The Claimant had admitted the gross misconduct, as he had admitted the sexual assaults. He had also admitted a “serious error of judgment in discontinuing his medication without medical advice”. As the Claimant had “openly admitted his misconduct”, very little investigation had been called for; clearly the Respondent had reasonable grounds for its belief. Dismissal was within the range of reasonable responses available to the Respondent: “Quite clearly, any Respondent, given the nature of the misconduct, would have invoked a sanction of dismissal.” The ET thus found that the dismissal was “quite clearly fair”.
In doing so the EAT found the ET had erred
On the unusual facts of this case, the ET needed to do more than simply consider whether there were reasonable grounds for concluding that the Claimant had performed the act in question; it also had to ask whether there were reasonable grounds for concluding that he had done so wilfully or in a grossly negligent way.
This the ET failed to do and on that basis the EAT determined that the previous determination that the Respondent had fairly dismissed the claimant was unsafe.
What Burdett re-emphasises is that Gross misconduct must be conduct that is deliberate (or grossly negligent) and an employer must have a reasonable basis for belief (the second Burchell test requirement). Where there is an ostensible case that misconduct has taken place I think the lesson here is that reps should seek to ensure questions about culpability are raised during the investigation and disciplinary process so there can be no excuse for the employer failing to consider this. And, if they don’t, this may then be a ground of appeal.
Although I don’t think the relevance to of Burdett to the issue of culpability is limited to that of disability related alleged misconduct this is where the issue is, I think, most relevant. In my experience disability issues in disciplinary matters where they touch on culpability are frequently considered under a mitigation heading – this merely repeats the precise error the EAT criticised the ET and employer for in Burdett. That is not to say, per Sinclair v Wandsworth London Borough Council, that disability is a free pass on culpability grounds but Burdett does make clear that, at a minimum, there must be a reasonable examination of the issue .
 At paragraph 46 of Sinclair the EAT (referring to another EAT judgement) that “In short (see paragraphs 39 to 40 of the EAT judgment) the EAT found that the fact that the matters were said to have arisen as a result of the mental illness of the Claimant in that case was no excuse. With respect, we agree with that conclusion. It cannot be said that totally unacceptable conduct in an employment context (or in a criminal context) can be excused by reference to a background or underlying illness. The fact is that the employer has been faced with unacceptable conduct in the workplace.”