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The issue of fairness in employee dismissal has long been a question that can be approached from different angles. One such approach lies in the application of the so-called Burchell test, which consists of three questions that assess the level of reasonableness of an employer’s actions prior to dismissing an employee. Firstly, it evaluates whether an employer genuinely believed in an employee’s misconduct. Secondly, it explores whether this belief was supported by reasonable arguments. Finally, it questions the depth and comprehensiveness of the investigation on the employer’s side that led to the mentioned claim. This approach has seen many applications in the almost 40 years since it was first applied. However, in the Reilly v. Sandwell Metropolitan Borough Council (Reilly) case of 2018, the Justice made a peculiar notion regarding its application. In particular, it was stated that “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 as fair.” In this context, despite the statement’s apparent hostility, it proves to be contextual and should not defy the test’s overall applicability.
If someone was fired from a job, they used to have few legal options for compensation under common law. This is due to the fact that under contract law, a party may, according to the contract’s conditions, provide notice to another party to terminate it. The amount of salary and additional perks that the employee would have been entitled to throughout the agreed-upon period of notice will thus be the highest limit of damages imposed. It applies even if the employee files a claim for wrongful termination based on a contract violation. To solve this problem, the legislation was greatly expanded with the addition of a right not to be fired unfairly.
This statute’s straightforward interpretations exist in the law in a number of different contexts. Most notably, however, it is defined in the Employment Rights Act of 1996 (ERA). Unfair dismissal is fundamentally a legislative notion, and every claim must pass the requirements set forth in what is now ERA Section 98. According to it, the employer must provide the cause for the termination and indicate that it came under one of the legally authorized categories (2). If so, and the tribunal determines that this was the real basis for the dismissal, it is thought that the dismissal may have been fair. The tribunal must decide whether the dismissal was generally fair or unfair once it has satisfied potential requirements, as per Section 98(4). This choice should take into account the business’s size and administrative capabilities. The tribunal determines whether the employer’s actions were fair or not, keeping equity and each case’s significant merits in mind. The most important element in most cases of unfair dismissal is this evaluation. In this context, the Burchell test is a summary of the 98(4) Section.
What is unusual in the Reilly case is that the Justices’ remark puts the Burchell test within 98(1) and (2), contradicting the already established practice. It entails attaching the employee’s termination reason, not its reasonableness, to the grounds for suspicion of misconduct and the rationality behind the inquiry that led to those grounds. Technically speaking, this part of the test becomes much more difficult for the employer. To put it another way, they must now make far more effort to demonstrate that they genuinely believe the employee committed a violation in order to establish potential justification for termination. This may significantly change how some tribunal cases turn out. First of all, sections 98(1) and (2) impose the proof burden on the employer, while section 98(4) interprets this burden as neutral. Second, tests for reasonable responses would no longer be applicable if the Burchell test was tied to sections 98(1) and (2), thereby allowing for less restriction in a tribunal’s reasoning. In other words, the number of cases to be resolved under 98(4) would substantially decrease.
This is why the peculiar notion of the Burchell test in the Reilly case should not be taken as groundbreaking. Given that Burchell was first determined before the proof burden became neutral, the subsequent shift should not have much of an influence on future cases of unfair dismissal legislation utilization. In addition, the Justices themselves contend that changing established legislation without a strong justification would be irresponsible,” following the aforementioned assertion. Judges must also be aware that Parliament has not attempted to address any prior statutory interpretation mistakes. The final comment on the case ends the case’s discussion: “the law remains as it has been for the last 40 years and I express no view about whether that is correct.” Ultimately, given the Justices’ clear unwillingness to make significant changes, the Reilly case is doubtful to have a strong effect on future practice.
For accusations of unfair dismissal, ERA section 98(4) is still crucial. The Burchell test has regularly been used to interpret this clause. This means that tribunals must take a reasonable employer’s viewpoint into account when making a dismissal decision and cannot substitute their own judgment in place of it. Hence, reasonableness is a broad term with minimal restrictions outside of those imposed by procedural expectations. The test has drawn criticism for restricting employees’ ability to contest termination, but it is ultimately an established idea that is capable of withstanding Reilly’s case challenge. The attitude toward the test’s application might change outside the ERA context. For instance, contradictions in the Court of Appeal’s instruction regarding behavior and sickness absence employee dismissals are apparent, and no convincing justification has been given for this. However, it was proposed that the answer may be due to historical discrepancies in the use of the Burchell test or judges’ unwillingness to generate different outcomes on each claim given the same evidence. In any scenario, it is likely that a higher court will ultimately be forced to address this inconsistency, which may influence the test’s use in the future.
Reference List
O’Brien, S. B. ‘Reasonable Responses Versus Proportionality in Employee Dismissal Cases: A Comparison Between the Employment Rights Act 1996, s 98 (4) and the Equality Act 2010, s 13 (2), s 15 (1)(b), and s 19 (2)(d)’, The Student Journal of Professional Practice and Academic Research, vol. 2, no. 1, 2020, pp. 1-86, Web.
The Supreme Court of the United Kingdom, ‘Reilly (Appellant) v Sandwell MetropolitanBorough Council (Respondent)’, The Supreme Court, London, The Supreme Court of the United Kingdom, 2018, Web.
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