Post Office (Consignia Plc) v Burkett

This appeal concerns the correct application of the Burchell test under section 98(4) of the Employment Rights Act 1996 in an unfair dismissal case. The Employment Tribunal found that the employer had genuinely formed a belief and had carried out a reasonable investigation but concluded there were no reasonable grounds to sustain the employer's belief that the employee had deliberately overfilled the vehicle with oil. The Court of Appeal held that the Employment Tribunal had, in effect, substituted its own assessment of the facts for that of the employer by failing to address the facts as they were before the employer and by not giving adequate weight to a proper investigation. The court allowed the appeal and remitted the matter for rehearing by a different Employment Tribunal.

Background and facts:

• The respondent, Mr K J Burkett, employed for nearly ten years with no disciplinary record, overfilled a Post Office vehicle with oil on 25 August 1999; the engine was seriously damaged and repair costs were about 6,000.
• After investigation the employer dismissed Mr Burkett for wilful damage on 18 November 1999 following a disciplinary hearing; appeal within the employer was dismissed on 25 April 2000.

Procedural posture: The Employment Tribunal (order of 23 January 2002) held the dismissal was unfair because, although it accepted the employer had honestly formed a belief and had carried out a reasonable investigation, the Tribunal concluded there were no reasonable grounds to sustain the belief that the overfilling was deliberate. The Employment Appeal Tribunal dismissed the employer's appeal on 12 July 2002. The employer appealed to the Court of Appeal.

Issues framed:

• Whether the Employment Tribunal applied the correct Burchell test (whether the employer had an honest belief, reasonable grounds for that belief and had carried out as much investigation as was reasonable).
• Whether the Tribunal impermissibly substituted its own assessment of the evidence for that of the employer instead of testing whether the employer's conclusion was within the range of reasonable responses.

Court's reasoning and decision:

• The Court of Appeal accepted that the Burchell test governs the inquiry under section 98(4) and that the Tribunal must consider first whether the employer had carried out as much investigation as was reasonable and then whether there were reasonable grounds for the employer's belief.
• The Court found the Employment Tribunal had concentrated on its own findings of fact rather than on the facts and materials before the employer and had not given adequate weight to the employer's careful investigation. In doing so the Tribunal had effectively substituted its own view on the critical question of deliberateness.
• Because relevant factual material (including evidence about the extent of overfilling, dipstick readings and the employer's investigative findings) had not been properly considered in the context of the employer's decision, the Court concluded the matter should be remitted for a fresh hearing de novo before a different Employment Tribunal.

Remedy sought: The appellant sought to overturn the Employment Tribunal's finding of unfair dismissal; the Court allowed the appeal and remitted the case for rehearing.

The appeal was allowed and the case remitted to a different Employment Tribunal for rehearing. The Court of Appeal held that the Employment Tribunal had impermissibly substituted its own assessment of the facts for a proper examination of whether the employer's honestly held belief was supported by reasonable grounds and by the material the employer had before it; the Tribunal had failed to test the employer's findings against the Burchell criteria and to give proper weight to a careful investigation.

Appeal to the Employment Appeal Tribunal dismissed (EAT order dated 12 July 2002). The Employment Tribunal originally decided on 23 January 2002 that the respondent had been unfairly dismissed with 30% contributory fault. The Court of Appeal ([2003] EWCA Civ 748) allowed the employer's appeal and remitted the case for rehearing by a different Employment Tribunal.