The Burchell Test, taken from the EAT’s decision in BHS v Burchell is still, over 40 years after it was first delivered, the main (but by no means only) test by which the fairness of a conduct dismissal is judged. The three-fold test sets out three questions which must each be answered positively:
- Did the employer genuinely believe the employee was guilty of the alleged misconduct?
- Did the employer have genuine grounds to suspect that the employee was guilty of misconduct?
- Did the employer carry out a reasonable investigation before making a final decision about the employees’ guilt?
The third test concerns whether an employer has conducted a reasonable investigation. Without a reasonable investigation a dismissal is likely to be unfair, even if an employee did in fact commit that misconduct. What is a reasonable investigation is of course context specific but by and large, even though employers often fail to do so, conducting a reasonable investigation is not that complicated. A fair investigation is an investigation that makes no assumptions, is impartial, investigates all relevant issues, and is focused just as much on evidence that shows the employee is innocent as they do on evidence that points towards guilt.
However, if there is one area in which employers in my experience frequently fail it is in those cases where there is a overlap between an employee’s health – especially mental health – and allegations of misconduct. The EAT’s decision in City of Edinburgh Council v Dickson (2009) is a useful case on the issue of reasonable investigations.
Mr Dickson was dismissed on an allegation of viewing pornography on the employer’s equipment during working hours, indeed there was good evidence that he had done so. This was a more serious an allegation because it was alleged that children had seen him viewing this material. Mr Dickson’s case was that he could not remember the incident but if he did do what was alleged it was not intentional and he must not of been in control of his behaviour.
This was not just speculation on Mr Dickson’s part. Mr Dickson had poorly managed diabetes. His argument was that if he did view the material it must have been in a state of a hypoglycaemic episode, during which a person can act wholly out of character and have no memory of what has occurred – he had had such attacks before.
During the disciplinary process the employer did have some limited advice that this could have been caused by a “hypo”, shorthand for a hypoglycaemic episode, but did not delve into this any further and did not engage with the defence because they thought the defence was false. The EAT commenting on the employer’s approach observed that “A degree of scepticism on the part of Mr Fraser [the manager] and the Council was thus entirely justifiable. But scepticism is one thing and a refusal seriously to consider the explanation proffered is another. The Tribunal in this case was well placed both to assess whether, surprising as it may initially have seemed, the Claimant’s explanation, supported by the materials available to the Council, might in fact have been true.”
The employer’s failing was that it did not properly engages with the employee’s defence. In this case, a reasonable investigation would have involved seeking specific medical advice on the possibility of the Mr Dickson having had a hypoglycaemic episode and what the consequences of such an episode would be on his conduct and memory. It would have also approached the issue with an open mind rather than assuming Mr Dickson was using his medical condition as an excuse. Had that investigation been conducted then it is possible the same eventual outcome would have occurred, but there would have been a reasonable investigation.
The takeaway point, I think, is that an employer should engage reasonably and with an open mind with all defences put forward by an employee. Where the employer is faced with a defence that points away from the misconduct, including that an employee did not do the misconduct intentionally, this needs to be investigated both by engaging seriously with the defence and making enquiries with medial experts as to the veracity of the employee’s account. Any failure to do so makes a disciplinary investigation potentially unfair on account of the third limb of the Burchell test.
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Employment Writes 