The Supreme Court appears to have provided an inlet for the longstanding Burchell test to be challenged.
We shall have to wait and see how the case law develops but in Reilly v Sandwell Metropolitan Borough Council, the Supreme Court gave guidance on what amounts to misconduct justifying dismissal where there is no clear breach of the employment contract
This appeal considered whether a head teacher had been fairly dismissed for failing to disclose her close relationship with an individual convicted of making indecent images of children. Whilst the decision has not changed the law, it considers the treatment of the longstanding test established in British Home Stores v Burchell  ICR 303.
Unfair dismissal – misconduct
In a misconduct situation, section 98(4) of the Employment Rights Act 1996 sets out the principles that an employer must abide by to fairly dismiss an employee. In summary, the question is whether it was reasonable to dismiss in the circumstances.
When considering this point, tribunals use the test set out in Burchell. In essence, the tribunal considers whether: (i) the employer reasonably believed misconduct occurred; (ii) it had reasonable grounds to support this belief; and (iii) the employer had carried out a reasonable amount of investigations prior to reaching this conclusion.
Supreme Court decision
In this case, the Burchell test was applied to the facts and the employment tribunal held that Ms Reilly should have disclosed that she had a relationship, albeit non-sexual, with an individual convicted of making indecent images of children.
The Supreme Court recognised that those convicted of crimes of this nature can pose both a direct and indirect threat to children and that teachers have a statutory duty to take steps to safeguard children. As a head teacher Ms Reilly would have access to sensitive information and knowledge of potentially vulnerable children. Her relationship with this individual could therefore pose an indirect risk to the children. As a head teacher, she should have been aware that her relationship with this individual could put the safety of the school children at risk and her failure to acknowledge this demonstrated that she was not a suitable person to run a school.
There was no express term in Ms Reilly's contract of employment imposing upon her a duty to disclose this relationship. However, due to the serious nature of the conviction, and the close relationship Ms Reilly had with the individual, it was an implied term of Ms Reilly's contract that she should have disclosed this relationship. Following such a disclosure, the governing body would be responsible for deciding whether any safeguarding procedures would need to be implemented. It was not the role of Ms Reilly to determine whether safeguarding procedures should be put in place.
The decision of the tribunal to dismiss Ms Reilly was upheld and her dismissal was deemed to be reasonable. This case serves as an important reminder of the safeguarding duties those working with children hold.
Lady Hale expressly commented that this case raised two issues that could have been considered by the court:
1. Whether a dismissal based on an employee’s conduct can ever be fair if that conduct is not in breach of the employee’s contract of employment; and
2. Whether the Burchell test is correct.
These points were not argued. However, Lady Hale noted that the Burchell test has been applied in thousands of cases for 40 years and that Parliament has never sought to revise the test through legislation. Whilst the commentary of Lady Hale may have brought these issues to the forefront of people minds, no changes to the current legal position have been made. We will have to wait and see whether a challenge to this longstanding test is brought on the back of this case.