The essential issues for a Tribunal to consider when faced with a misconduct dismissal are (as established in the case of British Home Stores Ltd v Burchell):-
(a) Did the Respondent have a genuine belief in the guilt of the Claimant?
(b) Was that belief reached on reasonable grounds following a reasonable investigation?
(c) Was dismissal within the range of reasonable responses?
The EAT case of Mrs A Pinto v Gloucestershire NHS Primary Care Trust considered in what circumstances an employer satisfies the Burchell test.
Mrs Pinto was a health visitor who was investigated in relation to amending records after the event, failing to keep contemporaneous records and holiding records at her home. During the investigtion (and after a first disciplinary hearing when the Claimant was given a final written warning) more was unearthed about the Claimant’s general clinical practice. The Claimant agreed to having a single hearing dealing with the old and new allegations. The second disciplinary hearing came to the conclusion that the Claimant should be dismissed in light of all allegations.
The Tribunal applied Burchell and found a positive response to the three issues outlined above. The Claimant appealed on the basis that the second disciplinary hearing was unfair. She said that she had been given opportunity to improve, following the warning and the Respondent jumped the gun by moving to a second hearing which resulted in her dismissal.
The EAT, when considering overall reasonableness, said that it is not open to the EAT to interfere when the material before the employer indicates that dismissal was within a range of reasonable responses. They referred to the case of Sarkar v West London Mental Health NHS Trust 2010 in relation to different forms of sanction being suggested but not followed through. They determined that the comparison to this case was misplaced and there was no unfairness. They held that it was not unreasonable of the employer to go ahead after consent to hearing the allegations all together had been given by the Claimant.
p.s Happy Birthday to me !