Assessing Fairness in Dismissals

1. In the case of Reilly v Sandwell Metropolitan Borough Council 2018 UKSC 16, huge light was thrown into debating whether the dismissal of Ms. Reilly was fair or unfair on her part. According to the Burchell test, it was focused on the questioning the reasons of dismissal rather than aiming at the question of its fairness. The Burchell test has been a key to assessing the ambiguity or the reasonability into calculating a dismissal. Even after 40 years, British Home stores v. Burchell (1978) IRLR 379 is known to be one of the strongest precedents for cases including dismissal of an employment.

The issue of the case was, that the Appellant, Mr. Reilly was the headteacher of the school, earlier in her lie, prior to joining the school, she had a friendship with a man called Ian Selwood was accused of capturing indecent pictures of the children. Based on such facts, it was held that Ms. Reilly breached a clause of the contract and could not be a part of the school anymore.

“The Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated fair as fair” quoted by Lady Hale, in her judgement of the case as the requirements within section 98(4) could not be fulfilled in the precedent judgement of Burchell’s case.

2. DISMISSAL

Generally speaking, dismissal is the termination of an employee by his/her employer, where sometimes, notice on beforehand is not served but, a valid reason is put forward which is a necessity. In England, the rights are classified into two types; first is conferred as statutory right where an employer is restricted in an unfair dismissal of an employee, and the second one is regard to common law which refers to a dismissal by an employer of an employee, as regard to the breach of a contract, also known as wrongful dismissal.

In the land of UK, the law proposes an act laying down the rights, responsibilities and remedies for employees, which is called as Employment Rights Act, 1996 where the circumstances for a dismissal is defined under section 95 of the act. In Newbound v Thames Water Utilities (2015) EWCA Civ 677, the court stated that it was important to pay attention towards statutory rules in order to condemn the said dismissal. Having said that, the band of the reasons stated by the employer was not wide enough.

Fair dismissal: Stated under section 98(4) of the Employment Rights Act, 1996, a dismissal if conducted taken into consideration the “substantial merits and equity” of the case, if the employer conducted upon such dismissal reasonably or unreasonably is measured and investigated. Further it shall amount to a fair dismissal if it was conducted on the basis of equity. The case of British Home Stores v Burchell [1978] IRLR 379 can be considered as an example of fair dismissal.

A constructive unfair dismissal refers to the breach of the contract between an employer and an employee. It contains a breach of a fundamental term i.e., to the root of the contract. Whereas, wrongful dismissal is a breach of a contract between the two parties by either one of them, where whether the employee is dismissed without following the actual procedural regulation or prior notice. The same applies to an employee at the time of his resignation. In, Western Excavating Ltd v Sharp [1978] ICR 221, Mr. Sharp worked overtime in order to earn extra money and it was in the agreement that he could take off work if he does so. He, one day took a break to play card-game and meanwhile he was dismissed. Similar was the issue in McBride v Falkirk FC (UKEATS/0058/10)

3. British Home Stores v. Burchell (1978) IRLR 379.

Ms. Burchell was a worker in a shop where Mrs. L was a colleague who wanted to purchase a pair of polychromatic sunglasses worth Euro 6.99. Ms. Burchell was authorised to conduct the sale, she misconducted in her job where she signed an amount in the docket cheaper than the actual amount. It was held that it was a case of dishonesty in staff purchase. The court stated that the dismissal was not conducted on the basis of merits and equity but was aimed into answering the three questions of an assessment. It has now set a standard rule to measure the fairness or unfairness of a dismissal by an employer in a case.

Burchell’s test was derived from this case which was used as a parameter to asses three questions;

a) Whether it was believed by the employer that the employee created a misconduct.

b) Whether there were enough reasons for the employer to belief in such fault of the employee.

c) Whether a legitimate decision has arrived out of the investigation.

In Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden: CA 31 Jul 2000, it was contended that the test of assessment was not conducted to know what would the Tribunal figure out but, to what extent the band of reasonable was stretched.

4. The Burchell’s case has been a landmark case, starting from the investigation procedural, to the judgement, it answers almost every question of a dismissal. Even after 40 years of its existence, it is one of the key judgements referred as a parameter in testing the fairness or unfairness of a case. Continuing with the unanimity of the ideas and diligence, the alleged misconduct in this case was certified reasonable by the employer which certainly brought three questions as to asses the nature of a dismissal.

In Iceland Frozen Food v. Jones [1983] ICR 17, the employee was caught doing fraud in payments that he was receiving overtime. The Environmental Appeal Tribunal contented that the appropriate way of testing was to asses the range of reasonableness stated by the employee.

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