The Burchell test

[Whatif?]

The “Burchell test” asks 3 questions:

1. Whether the employer actually believed that the employee was guilty of misconduct,

1. Whether it had reasonable grounds on which to base that belief, and

1. Whether it had carried out as much investigation as was reasonable in the circumstances of the particular case.

The employer regularly doesn’t put warning signs up when floor cleaning is in progress.
The employee cleaned the same floors once at the same time of day under the same conditions and didn’t put warning signs up. This was seen as a breach of health and safety by the employer. The employee was disciplined and dismissed.
Under the 'Burchell test', could the employer have believed the employee was guilty of misconduct and, did the employer have reasonable grounds to base that belief?

As far as I can see, the employer set the standard and the employee worked to that same standard.

[charitynjw]

Re: The Burchell test

The “Burchell test” asks 3 questions:

1. Whether the employer actually believed that the employee was guilty of misconduct,

1. Whether it had reasonable grounds on which to base that belief, and

1. Whether it had carried out as much investigation as was reasonable in the circumstances of the particular case.

The employer regularly doesn’t put warning signs up when floor cleaning is in progress.
The employee cleaned the same floors once at the same time of day under the same conditions and didn’t put warning signs up. This was seen as a breach of health and safety by the employer. The employee was disciplined and dismissed.
Under the 'Burchell test', could the employer have believed the employee was guilty of misconduct
Who had the (perhaps delegated) responsibility to display the requisite signs?
and, did the employer have reasonable grounds to base that belief?
Was there any kind of training provided or needed? (ie H&S training)
Did the employee have any kind of disability or other protected characteristic, that the employer was aware of, which might necessitate special consideration?

As far as I can see, the employer set the standard and the employee worked to that same standard.

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[Whatif?]

Re: The Burchell test

Who had the (perhaps delegated) responsibility to display the requisite signs?
No one was delegated to do this. I would guess responsibility would fall down to whoever was cleaning the floors. When the employer cleaned the floors himself I assume he would be responsible, and when the employee cleaned the floors then the employee would be responsible.

Was there any kind of training provided or needed? (ie H&S training)
No training was given about this. Don't know if any was required.

Did the employee have any kind of disability or other protected characteristic, that the employer was aware of, which might necessitate special consideration?
None

The employer has admitted in his statement that he cleaned the floors without displaying warning signs. Lets say for a moment H&S required signs to be displayed. Would the fact that the employer set the standard by not displaying warning signs mean he could not then have a reasonable belief that the employee was guilty of misconduct when the employee did not display warning signs?

[Whatif?]

Re: The Burchell test

"An employer must also be consistent in their approach to dismissal – that is, they must not dismiss an employee for doing something that they allow other employees to do. "

I found the above quote online. Would the same apply if it was the employer doing the something; would it be inconsistent if they dismissed an employee for doing something which they themselves do?