Burdis v Dorset County Council

Under Employment Rights Act 1996, an employer must first establish the facts or beliefs which caused dismissal and show that they constitute a potentially fair reason. A conduct dismissal requires personal culpability, but culpability may arise from serious neglect, omission or carelessness as well as wilful misconduct.

The Burchell guidance assumes that the dismissal has properly been characterised as one for conduct. An Employment Tribunal should address the statutory questions in sequence, but an unhelpful structure does not disclose an error of law if its reasons, read as a whole, show that it made the required findings. A senior employee's grossly negligent failure to establish necessary financial controls and monitoring may be conduct rather than capability.

The Claimant, a long-serving local-authority employee and Director of the Dorset Waste Partnership, was dismissed following serious procurement and financial-management failures, including substantial inappropriate hiring costs. The Respondent found that he had grossly neglected his strategic responsibility to establish effective financial and procurement controls.

An Employment Tribunal sitting at Southampton dismissed his unfair-dismissal claim. It found that the Respondent genuinely and reasonably believed that the Claimant had failed to implement proper management systems and that dismissal fell within the range of reasonable responses.

On appeal, the Claimant contended that the Tribunal had not determined the reason for dismissal and that the alleged failings were capability, or public-accountability, matters rather than conduct. The central issue was whether the Tribunal had permissibly found a dismissal for a reason relating to conduct under Employment Rights Act 1996, section 98.

1. Appeal dismissed. Although the Employment Tribunal's chronological reasoning was unhelpful, its decision had to be read as a whole. It had identified the operative facts and beliefs of the investigator and, more importantly, the disciplinary panel. It had thereby found that the Respondent dismissed the Claimant for a reason relating to his conduct within section 98(1) and (2) of the Employment Rights Act 1996.

2. The statutory exercise has three stages: the employer must establish the reason for dismissal; the Tribunal must decide whether it is a potentially fair reason; and, if so, determine fairness in all the circumstances under section 98(4). The Burchell guidance assists in a conduct dismissal, but its inquiry into the employer's belief assumes that the Tribunal has first determined that the material facts or beliefs concern misconduct.

3. A reason relating to conduct requires personal culpability. It is not confined to deliberate or wilful wrongdoing. Serious neglect, omission or carelessness may amount to misconduct where the employee had personal responsibility for the relevant matter.

4. The Tribunal permissibly found personal culpability here. The Claimant held a senior leadership role and had primary responsibility to ensure rigorous financial frameworks, proper delegation, oversight and timely monitoring. His grossly negligent failure to put those measures in place was a personal failure to meet the requirements of his role. It was therefore open to the Tribunal to treat the matter as serious misconduct, rather than merely capability or a dismissal based on ministerial-style accountability.

5. The Tribunal had also found a genuine belief, reasonable grounds, a fair investigation and a sanction within the range of reasonable responses. No error of law was shown.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal's rejection of the unfair-dismissal claim was upheld.
• Employment Tribunal, Southampton: rejected the Claimant's claims for unfair dismissal and holiday pay. The present appeal concerned only unfair dismissal.