How sure does an employer have to be of an employee's guilt when dismissing for misconduct?

Boris Johnson has again been accused of misleading Parliament, this time by his own MPs in relation to questions put to him about his conduct at the now infamous No. 10 lockdown “parties.”

There is a parallel to be drawn here between Boris Johnson’s attempts to justify his actions in Parliament and an employee who is facing misconduct allegations pleading their case at a Disciplinary Hearing.

When faced with an employee who flatly denies their potential misconduct, how sure does an employer have to be of that employee’s “guilt” before issuing a disciplinary sanction, particularly if the sanction is dismissal?

If an employee facing a misconduct allegation has over two years’ continuous service with their employer, they will have qualifying service to bring a claim for ordinary unfair dismissal in an Employment Tribunal – it is therefore vital, particularly if the employee is to be dismissed, that the employer can demonstrate that the dismissal was fair.

A fair dismissal is broken down into three broad steps:

1. Identifying a potentially fair reason for dismissal;
2. Following a fair procedure leading to the decision to dismiss (“procedural fairness”); and
3. Acting reasonably, in all the circumstances, in treating the reason identified as sufficient reason to dismiss (“substantial fairness”). 

Turning back to Boris, if he were “employed” by a commercial employer, it is likely he would be facing allegations of misconduct along the lines of:

• acting contrary to the COVID-19 self-isolation regulations; and
• deliberately acting in breach of the employer’s internal health and safety procedures.

It is potentially fair to dismiss an employee for a reason that relates to the conduct of that employee as “conduct” is one of the five potentially fair reasons permitted in law.

However, an employer must ensure it follows the ACAS Code of Practice on Disciplinary and Grievance Procedures prior to treating this potentially fair reason as a sufficient reason to dismiss.

This will entail, in short:

• fully investigating the allegations;
• inviting the employee to attend a Disciplinary Hearing (with sufficient notice of the Hearing, of the allegations against them, of the documentation that might be discussed at the Hearing and of the potential consequences of the Hearing if the allegations are upheld); 
• allowing the employee to attend the Hearing with a companion (either a fellow colleague or an authorised Trade Union representative); and
• allowing the employee the right of appeal against the decision. 

Turning again to Boris, if at the Disciplinary Hearing, like Boris, the employee flatly denies the allegations against them, the employer will then be forced to make a decision about potential “guilt”.

An internal disciplinary investigation is not a court of law, so how sure does an employer have to be of the employee’s guilt in these circumstances?

The answer lies in the case of British Home Stores -v- Burchell – the key principle arising out of this case is often referred to as the “Burchell Test”. In simple terms, a dismissal on the grounds of misconduct will only be fair if:

1. At the time of the dismissal, the employer believed the employee to be guilty of misconduct;
2. At the time of the dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct; and 
3. At the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.  

The employer also has to consider whether dismissal falls within the range of reasonable responses open to them, or whether some other form of sanction, such as a written warning, would be more appropriate.

The crux of the matter is to therefore conduct as much investigation as is reasonable in the circumstances before forming any belief as to potential guilt of an employee.

In this case, our hypothetical employer is faced with numerous statements of fellow MPs who attended the lockdown “parties” at No. 10 in breach of the COVID-19 self-isolation regulations confirming Boris Johnson’s attendance, photographic evidence of Boris at the “parties” at the relevant time with a glass of wine in hand and conversely Boris’s pleas that he acted in accordance with COVID-19 self-isolation regulations at all times.

Despite the witness evidence and Boris’s own account of events conflicting, it is likely that Boris could be fairly dismissed if our hypothetical employer has:

• formed the belief that Boris is guilty of misconduct;
• has reasonable grounds for believing that Boris was guilty of misconduct;
• formed their belief following conducting as much investigation as was reasonable in the circumstances; and
• considered all potential sanctions available to it prior to taking the decision to dismiss.

The employer does not have to have cast iron proof of Boris’s guilt, but must have conducted a fair, even handed, reasonable investigation which takes into account his version of events, before forming a view post the Disciplinary Hearing as to whether to uphold the allegations against him or not.