Employment Flash - 5th January 2010

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A legal souffle to start the year: getting Burchell right on the burden of proof...

Sheffield Health and Social Care NHS Foundation Trust v Crabtree [2009] UKEAT 0331 09 ZT

The ET misdirected itself as to the burden of proof on S in relation to satisfying the Burchell test as it placed the burden on S in relation to all three elements.

The 3 elements to the Burchell test: (1) there must be established by the employer the fact of a belief in the guilt of the employee regarding the misconduct in question; (2) the employer must have had in his mind reasonable grounds on which to sustain that belief; (3) at the stage at which the employer formed that belief on those grounds, the employer had carried out as much investigation into the matter as was reasonable in all the circumstances of the case (British Home Stores v Burchell [1980] ICR 303, 304 D-E.

Under para. 6(8), Sched. 1, TULRA 1974 the burden was on the employer in relation to all 3 elements: "...whether the employer can satisfy the tribunal... he acted reasonably in treating it as a sufficient reason for dismissing..." Burchell was decided on 20.7.78 even though it was not reported until 1980 (when it appears as a Note in the ICRs; rather a backdoor entrance onto the legal stage for a test which is so ubiquitous, the case it originates from need only rarely be produced to a tribunal (just as with Polkey, or Meek or Yeboah in the EAT; referral to the name is enough - though if the issue is live on the facts an ET should consider the Polkey question in any event whether referred to by a party or not, and the Meek and Yeboah points can be expressed in the grounds of appeal without in appropriate circumstances ever having to refer in a skeleton to either case by name).

From 1.10.80 under the s.57(3), EPCA 1978 it became: "...shall depend on whether in the circumstances... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing... and that question shall be determined in accordance with equity and the substantial merits of the case.", wording which is retained in s.98(4) ERA. Therefore the reference in Burchell to the employer satisfying all three elements lapsed.

The burden of proof is on the employer in relation to question (1) Did the employer have a genuine belief in the misconduct alleged? as that goes to the reason for dismissal. Questions (2) and (3) are burden neutral as they go the question of reasonableness under s.98(4) ERA.

HHJ Clark in delivering judgment was able to cite himself as the successful Counsel in Post Office Counters Limited v Heavey [1989] IRLR 515, where the EAT recognises that neutrality applies following the change in the law, and then cite himself as the learned Judge who points out as much again in Boys and Girls Welfare Society v McDonald [1996] IRLR 129.

Employment Team