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Burchell and reasonable belief.

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  • Burchell and reasonable belief.

    Can you help me with the Burchell test. It says: 1) The employer must have a genuine belief in the employee’s guilt, 2) the employer must have reasonable grounds for that belief, 3) at the time the employer held that belief the employer must have carried out as much investigation as was reasonable in the circumstances.

    Its the third point I need clarification on. Does that mean a belief can only come into existence after an investigation, or does it mean employer can have a belief prior to an investigation but the belief will only become reasonable if supported by the investigation?

    What happens if employer has a belief prior to an investigation, then the investigation does not establish anything to support the belief; would the belief be seen as reasonable?

    Thanks
    Tags: None

  • #2
    Anyone?

    Comment


    • #3
      I think it depends at what point the dismissal took place -
      Was a reasonable investigation carried out prior to the dismissal, then further investigation showed the belief was wrongly held, or were you dismissed solely on a belief with no prior investigation, then the full investigation showed the belief was wrong ?


      Just tagging Ula for you.

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      • #4
        Was the person dismissed as a consequence of the investigation? If so was it on the basis of gross misconduct? What length of service did the person have if they were dismissed?
        I do my best to provide good practical advice, however I do so without liability.
        If you have any doubts then do please seek professional legal advice.


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        • #5
          Originally posted by Amethyst View Post
          I think it depends at what point the dismissal took place -
          Was a reasonable investigation carried out prior to the dismissal, then further investigation showed the belief was wrongly held, or were you dismissed solely on a belief with no prior investigation, then the full investigation showed the belief was wrong ?


          Just tagging Ula for you.
          An investigation was carried out prior to dismissal. It did not establish the facts that were relied on to dismiss. Those facts were just pulled out of thin air by disciplinary officer at disciplinary hearing without any supporting evidence. The dismissal relied on those facts despite them not being established or verified by investigation or disciplinary officer. No further investigation took place before dismissal.



          Originally posted by Ula View Post
          Was the person dismissed as a consequence of the investigation? If so was it on the basis of gross misconduct? What length of service did the person have if they were dismissed?
          No. The investigation did not establish the facts that were relied on. The person was dismissed after the investigation just so employer could say they carried out an investigation then disciplinary as per the disciplinary process. The person was dismissed as a consequence of alleged facts/belief held by disciplinary officer that were never investigated or established or verified and which were apparently known/held by investigation officer prior to investigation.


          As none of the facts relied on to dismiss were established by either the investigation or disciplinary officers, and the disciplinary officer held his beliefs prior to the investigation, and the investigation found nothing to support those beliefs, were those beliefs reasonable as prescribed by burchell test?

          Thanks

          Comment


          • #6
            How long had the person been employed?
            I do my best to provide good practical advice, however I do so without liability.
            If you have any doubts then do please seek professional legal advice.


            You can’t always stop the waves but you can learn to surf.

            You are braver than you believe, smarter than you think and stronger than you seem.



            If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

            Comment


            • #7
              Originally posted by Ula View Post
              How long had the person been employed?
              Over 3 years but the company was recently bought and they were tupe over to new employer with continuous service. Would length of employment affect the reasonableness of a belief?

              Comment


              • #8
                It would have done if the person had less than 2 year service, as an unfair dismissal claim would be hard to pursue unless it falls into a certain set of criteria.

                Has the person raised an appeal against there dismissal? If not that would be the first course of action that should be taken.

                What Burchill boils down to is whether the employer has a genuine belief, on reasonable grounds after a reasonable investigation.

                A fourth point to remember is that if there was a thought of making an employment tribunal claim the tribunal panel are not there to judge the merit of the evidence that the employer had available to them but instead look at the three questions that the Burchill test raises. If it is shown that all three points are positive then it is a significant possibility that the tribunal will be able to decide that it is a fair decision to dismiss. Although the employer will then have to go on to show that the decision to dismiss was within the range of reasonable responses for that misconduct.


                I do my best to provide good practical advice, however I do so without liability.
                If you have any doubts then do please seek professional legal advice.


                You can’t always stop the waves but you can learn to surf.

                You are braver than you believe, smarter than you think and stronger than you seem.



                If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

                Comment


                • #9
                  The person has appealed on the grounds that the employer's belief was not reasonable because the investigation did not establish anything to support their belief.

                  This is what I was trying to find out before the appeal was put in but it is still not clear if a belief can be reasonable without any supporting evidence from an investigation, so they went with that appeal regardless. employers can believe anything they want, but for an employment tribunal, that belief must be reasonable. I dont see how it could be reasonable if the investigation does not support it.

                  Comment

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