Thirty or so years ago, in the case of British Home Stores v Burchell 1980, the Employment Appeal Tribunal laid down the three-stage test – known as the ‘Burchell Test’ – which an employer must follow to establish whether an employee has committed an act of misconduct. It says they must:
1. believe the employee was guilty of misconduct.
2. have ‘reasonable grounds’ for holding that belief, e.g. an allegation or other evidence.
3. carry out a ‘reasonable investigation’, taking into account all the circumstances, before imposing disciplinary sanctions including dismissal.
From 1980 onwards, all employers were duty bound to bear this test in mind when dealing with alleged acts of misconduct by employees.
As usually happens with the law, cases arise whereby case law needs to be refined yet further. This arose in the famous case of Salford Royal NHS Foundation Trust v Roldan in 2010.
In this case, the Court of Appeal was asked to consider how far an employer must go during an investigation to satisfy the Burchell Test. Here, one nurse (D) had made an allegation of patient abuse against another, Roldan (R).
Roldan, a Filipino, was an experienced registered nurse. The Trust conducted an investigation and decided to dismiss nurse Roldan for gross misconduct. Under its procedures it also notified the police, although no criminal charges were actually brought.
Roldan subsequently issued a claim for unfair dismissal on the basis that she had not been the subject of a fair disciplinary investigation. The matter ended up in the Court of Appeal, which found firmly in her favour.
Although the court noted that the Trust had acted promptly, in that it had not allowed the allegations to hang around for months (unlike in Pead’s case), it criticised its investigatory procedures, particularly in light of the seriousness of the allegation. Firstly, it pointed out that it had accepted nurse D’s version of events ‘without question’ – this was dangerous as she was the only witness and Roldan denied any wrongdoing.
Because there was conflicting evidence, the court said the Trust should have made real attempts to determine what happened by locating independent witnesses, for example patients or other staff.
Cathy Twist failed in precisely the same way in her ‘investigation’ of Brian Pead. The white South African, Maryn Murray, had made allegations and Pead had robustly denied them. In such circumstances, the Court of Appeal would have expected Twist to call independent witnesses. There was no shortage of independent witnesses – Murray had named more than a dozen pupils in her allegations against Pead. Not a single pupil was called as a witness in an abuse of process.
Why would Twist not call these pupils as witnesses? And why weren’t their parents informed about these Child Protection issues?
In the Roldan case, Salford Royal NHS Foundation Trust also failed to ‘test’ the physical evidence, i.e. the layout of the area where the alleged misconduct was said to have taken place. This was relevant to the strength of nurse D’s evidence.
This case is also relevant to Pead’s case because Murray claimed that he had been masturbated in the White Bear theatre in Kennington, allegedly bringing Lambeth into disrepute. Had Twist visited this theatre (a mile or so from her office in Brixton) she would have seen that this act was impossible.
The Court of Appeal indicated that where there is conflicting and unproven evidence from two employees, employers are not automatically obliged to believe one over the other; if no independent witness can be found, the safest option is to conclude that there is, in fact, no case to answer.
This option was, of course, available to Twist and Lambeth Council – but for their own dark reasons, they continued with the allegations against Pead.
As a point of good practice, the court also said that where disciplinary action might result in a ‘black mark’ against an employee’s name, for example by having criminal charges brought against them (regardless of whether it results in a conviction), the employer must ensure the evidence is accurate before they rely on it. If they don’t ensure that the evidence is accurate, it will be almost impossible to satisfy the Burchell Test and the employer will have acted unlawfully.
Despite there being considerable legislation under employment law to indicate that Twist should drop all charges against Pead, she maintained her unrelenting and irrational pursuit of an innocent man.
And in doing so, she was protecting Murray – who had been dismissed for grooming young girls and being racist to black male pupils.
Brian Pead reported Murray to his line manager, Barry Gilhooly, who failed to inform the police.
Pead also informed the investigator, Twist, about Murray’s impropriety but she, too, failed to act.
Yet Lambeth’s own procedures provided guidance on the reporting of any form of sexual impropriety. Click here to read the Lambeth document, which neither Gilhooly nor Twist adhered to.
Click here to read how Cathy Twist – the investigator in Pead’s case – was soundly criticized for conducting a flawed investigation in the case of James Walker.
On ruling his dismissal as unfair, the South London Employment Tribunal criticised the council’s inquiry into the allegations, saying this “amounted to a fishing exercise which focused on obtaining the most damaging information about the claimant”.
Several witnesses put forward by the council were not credible, the tribunal said.
It criticised Penny Bermingham, who was the acting head of the school during Mr Walker’s sick leave; Matt Britt, who was the interim headteacher after Mr Walker’s suspension; and two senior education officers – Cathy Twist and Claire Cobbold.
Barry Gilhooly, a former assistant director at Lambeth who carried out the investigation into the allegations against Mr Walker, was also criticised by the tribunal which found his investigation was flawed.
They chose not to respond to BBC London’s report.
Note that Twist, Gilhooly and Cobbold were also involved in the unlawful dismissal of Brian Pead.
I have rarely found a tribunal as willing to condemn as many people who came before them for not telling the truth”
Simon Hughes MP
Click here to see Simon Hughes speaking about the James Walker case.
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