Luton Borough Council v Burton [1996] UKEAT 71_96_2811

EAT

Luton Borough Council v Burton

[1996] UKEAT 71_96_2811 · 1996-11-28

MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal which, unanimously concluded that the applicant had been unfairly dismissed.

The employers had contended that the reason for his dismissal was misconduct. The tribunal had to consider whether, having regard to that reason, the employers had acted reasonably in treating that as a sufficient reason for the dismissal, having regard to the statutory provision in section 57(3) of the 1978 Act.

In the course of their decision, the Industrial Tribunal directed itself as follows:

"44. The tribunal itself has considered the decision in the case of British Homes Stores Limited -v- Burchell [1980] ICR 303 where it was held that in cases where an employee is dismissed for being suspected of misconduct, it is for the industrial tribunal to decide whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct. The employer must establish:-

(1) The fact of the belief;

(2) That he had in his mind reasonable grounds upon which to sustain that belief;

(3) That he had carried out as much investigation into the matter as was reasonable in all of the circumstances of the case."

In so far as they directed themselves that the employer "must establish" the second and third elements, they have misdirected themselves. The law was as they have stated it at the time when the British Homes Stores case was decided. But since then, by statute, the burden of proof has been altered so that it is an open matter, and the employer is not under a burden of proving that he had reasonable grounds on which to sustain his belief or that he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

We are therefore faced with a very unhappy position. This is a decision which was arrived at after a seven day hearing, extending over a period from 10th July through to 29th November 1995, the decision being promulgated on 7th December 1995.

It seems to us in all justice that we cannot allow the decision to stand as it is, bearing in mind that there has been a misdirection on burden of proof. Because the losing party will unquestionably have a genuine sense of grievance that the whole of the decision was infected by this misdirection, we were not persuaded to accept the submission that the case was not decided on the basis of the burden of proof. One is simply not in a position to say whether that is so or not.

Accordingly, we are going to direct that the matter should go for a rehearing before a new tribunal. It will be up to the parties in those circumstances to deploy such evidence as they wish at that new hearing. It seems to us that it would be most undesirable for the Employment Appeal Tribunal to say anything further about the facts of this case or to indicate one way or another as to how we think that decision should be arrived at. It seems to us also that when that new tribunal is convened, it would be undesirable that the first decision should be referred to or made available to them.

Accordingly, on that limited ground, we propose to allow the appeal and remit the matter back for a rehearing. By doing so we recognise that we are not doing full justice to the extremely capable arguments that we have been presented with this afternoon. Counsel will appreciate the reason why we have not gone into their arguments. It is not out of discourtesy to them, but it is simply because of what we have previously said.