In Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16, the Supreme Court rejected Ms Reilly’s argument that her employment contract didn’t expressly oblige her to disclose her friendship with a sex offender. It found the dismissal to be fair because the employer genuinely believed she was guilty of misconduct and the dismissal was within the so-called ‘band of reasonable responses’ (see below).
Understand the Unfair Dismissal Test
For a dismissal to be fair, the Employment Rights Act 1996 says:
- You must have a permissible reason for the dismissal, such as misconduct, capability or redundancy, as set out in the Act.
- You must have acted reasonably in the circumstances.
The 40-year-old Burchell test (named after BHS v Burchell [1978] UKEAT 108/78) adds that a misconduct dismissal will only be fair if, at the time of dismissal, you:
- Believed the employee to be guilty of misconduct.
- Had reasonable grounds for that belief.
- Carried out as much investigation into the employee’s conduct as was reasonable in the circumstances.
In judging whether you acted reasonably, the tribunal must not simply substitute its decision for your own. In many cases, there is a band of reasonable responses to the employee’s conduct: one employer might take one view, another might take a different view and both views might be reasonable. If, in your particular case, the decision to dismiss fell within the band of reasonable responses that a reasonable employer might have adopted, the dismissal will be fair.
In Reilly, the court suggested it might be time to reconsider the validity of the Burchell test. However, for now, the law remains the same, so you should continue to follow the above pointers.
How to Ensure Your Response is Reasonable
To ensure a misconduct dismissal is within the band of reasonable responses, work through this checklist. If you are unable to answer ‘yes’ to any questions, you could be at risk of an unfair dismissal claim.
8 Steps to a Fair Misconduct Dismissal
Tick off after completion of each step:
1. Did the employee know they could be dismissed for what they did?
Some behaviour is clearly unacceptable. However, in less serious cases, it will be easier to defend any unfair dismissal claim if contracts, handbooks and policies make clear that the conduct is a sackable offence. You can’t predict every scenario but ensure policies list the types of behaviour that constitute misconduct and gross misconduct and highlight
expected standards of conduct.
2. Does the employee have live warnings on file?
Unless the behaviour is gross misconduct, give the employee a chance to improve before you dismiss them. If they have received a final written warning and failed to meet the deadline for improvement, you can consider dismissal.
3. Have you investigated the conduct ?
Collect witness statements and meet the employee so they can respond to the allegations. If you suspect gross misconduct, suspend them on normal pay until the investigation is complete.
4. Is dismissal in line with how you’ve dealt with similar offences by other employees?
A tribunal will expect you to act consistently.
5. Have you considered a lesser sanction, such as suspension, demotion or a warning?
A tribunal may expect leniency if the employee has a long, unblemished record, shows remorse or the breach was minor or not deliberate.
6. Is dismissal appropriate given your resources?
The tribunals are likely to be more sympathetic to you if you’re a small employer. For example, if an employee offends a customer you might not have another role for them as a larger employer might.
7. Have you followed a fair dismissal process?
Follow the Acas Code of Practice or any contractual procedure.
8. Have you recorded how you reached your decision?
If the individual brings a claim, you can use this as evidence that you acted reasonably.