Unfair dismissal: Burchell test challenged?
In Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 the Supreme Court (UK) held that a teacher, who failed to disclose her relationship with a person convicted of a serious crime (downloading indecent images of children), was fairly dismissed. According to the Court, Ms Reilly's failure to disclose her relationship was a breach of her duty and merited her dismissal.
This is a very interesting case because of the comments made by the Court on the Burchell Test (the test applied by the Courts for the last 40 years, after being established in British Homes Stores Ltd v Burchell ICR 303 (1978), to determine the fairness of a dismissal for misconduct - according to this test a dismissal for misconduct is fair if the employer actually believed that the employee was guilty of misconduct, if he based his belief on reasonable grounds and if he carried out as reasonable investigation regarding the misconduct).
Specifically, the Court commented that the decision in the British Home Stores case did not relate to the inquiry mandated by what is now section 98(4) of the Employment Rights Act 1996. Also, it commented that this case might have presented an opportunity for the court to consider whether the ?Burchell? test was correct.
The Supreme Court was not invited to hear arguments on this issue, so the comments are not binding, but they might inspire challenges to the Burchell Test which has proved helpful to employers over a lengthy period.
Video of the decision: https://www.supremecourt.uk/watch/uksc-2016-0170/judgment.html