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Tribunal was wrong to rely on its own ideas of the real reason for dismissal in an unfair dismissal claim

Adrian FryerIn the recent case of Mullen v Greater Glasgow Health Board the claimant was dismissed from his role as supervisor for gross misconduct after an investigation found that he had threatened a fellow employee. The tribunal held that the respondent had carried out a full investigation and held a reasonable belief that the claimant had committed an act of misconduct but they nevertheless found that the dismissal was unfair. This was on the basis that the tribunal had its own ideas as to what the real reason for dismissal was.

The Employment Appeal Tribunal have now overturned this decision and substituted a finding of fair dismissal. The EAT held that it was not open to the tribunal, having found that the respondent held a genuine belief in the claimant’s misconduct, to base their decision on their own hypothesis as to the ‘real’ reason.

This case serves as a reminder that compliance with the Burchell test will be of key importance when looking to defend unfair dismissal claims in conduct cases. The Burchell test requires the respondent to show that it held a reasonable belief, based on a reasonable investigation, that the employee had committed an act of misconduct. If these stages can be satisfied then it is not then open to a tribunal to look behind this and speculate as to an alternative ‘real reason’ for the dismissal.

For more information please contact a member of our Employment team.