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Supreme Court Casts Doubts Over the Future of the “Burchell” test in Unfair Dismissal Cases involving Misconduct.

Written by Brabners LLP  

Is there now going to be a change to how those cases are dealt with by the courts?

The Supreme Court (‘SC’) recently heard the case of Reilly v Sandwell Metropolitan Borough Council, holding that the dismissal of a school headteacher due to her connection with a convicted sex offender (‘S’) fell within the range of reasonable responses open to the employer. However, comments made in the case cast doubt over the future of the Burchell test used by tribunals in misconduct cases.  This in turn raises the question of whether we will see a change in the approach adopted in such cases and the factors taken into account by tribunals when considering the employer’s dismissal for misconduct.


In Reilly, the headteacher of a primary school had close connections with a convicted sex offender, S. Amongst other ties, she had previously purchased a house with S. S was convicted of creating indecent images of minors and Ms. Reilly (the headteacher) did not disclose her relationship with him to the school governors. Upon discovering the relationship, the school suspended Ms. Reilly.  The headteacher was later dismissed by the school, which relied on a finding of gross misconduct due to a breach of her employment contract (as a result of her failure to disclose the relationship). The school also had worries over Ms. Reilly’s apparent lack of understanding as to the gravity of the risk to the schoolchildren as a result of her close ties to S. Ms. Reilly initiated unfair dismissal proceedings and her claim was dismissed at all previous courts. An appeal was made to the SC.

Outcome of the case and SC comments

The outcome given by the SC was consistent with the findings of the previous courts. Ms. Reilly’s appeal was dismissed. It was held that Ms. Reilly was under a contractual obligation to provide assistance to the school in discharging its duties, in particular the school’s duty to safeguard its pupils. Examples of misconduct that could result in disciplinary action were contained within Ms. Reilly’s employment contract and the failure to disclose information in line with Ms Reilly’s duties was such an offence. The SC relied upon the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 – although the legislative requirements would not disqualify Ms. Reilly from her role because of her relationship with S, the legislation did establish that individuals like S could pose a risk to minors. The SC accepted that it was reasonable to conclude that, Ms. Reilly’s inability to disclose her relationship with S, and the resultant risk to the safety of pupils caused by this non-disclosure, was conduct capable of being deemed gross misconduct. The SC also agreed that it was within the range of reasonable responses to dismiss Ms. Reilly from her role as a result of the offence. It was accepted that Ms. Reilly’s continued inability to understand the risk posed as a result of her relationship with S made her role untenable. More importantly, the SC raised doubts as to the effectiveness of the Burchell test used in misconduct cases. Under the Burchell test, tribunals must consider whether there was a genuine belief that the employee had committed the misconduct, whether that belief was reasonable and whether reasonable investigation had been undertaken by the employer.  The SC unanimously confirmed that the Burchell test does not fit well with part of the legal requirements to be considered in an unfair dismissal claim, namely whether the employer acted reasonably in treating the reason for dismissal as sufficient to constitute a dismissal.  The SC went on to confirm that the Burchell test can lead to unfair dismissals being treated as fair and vice versa and highlighted the inconsistent results that can arise as a result.  Although, as Mr Reilly had not attempted to argue whether the Burchell test was fair or not as part of her case, it did not make a finding in respect of the matter. Accordingly, the SC has left the door ajar for a future challenge to the principles set out under the Burchell test.


The outcome of this case is unsurprising. Ms. Reilly’s failure to disclose her relationship with S and her inability to understand the threat posed by that relationship made continued employment at the school untenable. However, in reaching its decision, the SC’s comments cast doubt on the effectiveness of the well-established Burchell test and this creates some potential uncertainty for employers with regard to how future unfair dismissal cases will be dealt with.  Whilst the SC let the debate upon the effectiveness of the Burchell test lie for another day, it remains to be seen how long those principles will remain good law.  No changes have yet been made, but we expect that future cases may now seek to challenge the test principles. Watch this space!