British Home Stores Ltd v Burchell

Arnold J. delivered the following judgment of the appeal tribunal. This is an appeal by the employers, British Home Stores Ltd., against the decision of an industrial tribunal sitting in London on December 14 and 15, 1977, when they had to consider an application by the employee, Miss Burchell, in which she claimed that she had been unfairly dismissed by the employers. What has happened in fact is that the employee is back working for the employers and everything so far as we know is perfectly happy in that quarter. It is for that reason, as she has said, in a letter she has written to the tribunal, that she is determined not to come here to oppose the appeal. That makes our task not easier but more difficult, since it is we who have had to put to the employers the matters which might have been put by an advocate for the employee had she been anxious to defend the decision, which was a decision that she had been unfairly dismissed.

The case is one of an increasingly familiar sort in this tribunal, in which there has been a suspicion or belief of the employee's misconduct entertained by the employers; it is on that ground that dismissal has taken place; and the tribunal then goes over that to review the situation as it was at the date of dismissal. The central point of appeal is what is the nature and proper extent of that review. We have had cited to us, we believe, really all the cases which deal with this particular aspect in the recent history of this tribunal over the past three or four years; and the conclusions to be drawn from the cases we think are quite plain. 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 themselves 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.

Now here the tribunal have started off, as we think, entirely correctly by stating in an opening paragraph of their reasons:

“In these proceedings we are not concerned with whether the employee was guilty or innocent of the offences charged against her but whether the employers had reasonable grounds for believing that she had committed the offences when they dismissed her on October 28, 1977.”

That is quite correct. It is important always in these cases to bear in mind, as we bear in mind and choose to say, that on no view of the matter did the industrial tribunal, nor does this tribunal, adjudicate upon the guilt or innocence of the employee. She has never been prosecuted. She has never had any finding against her by any tribunal, certainly not by this tribunal, that she was guilty of any offence of dishonesty which the employers believed she...