The requirements of British Home Stores v Burchell (1978) applied where the tribunal was asking itself hypothetical questions, such as to the possible outcomes of disciplinary proceedings.Applicant's appeal from the decision of the Employment Appeal Tribunal ('the EAT') on 12 March 2002 to dismiss the applicant's appeal from the employment tribunal ('the tribunal'), which had dismissed her complaint of discrimination and victimisation on the grounds of sex and race but found that she had been unfairly dismissed. The tribunal held that if the applicant had not been unfairly dismissed she would have been dismissed within a short period at the conclusion of disciplinary proceedings as there was an overwhelming probability that she would have been found guilty of gross misconduct and would be summarily dismissed. In addition to working for the respondent authority, the applicant had also worked for a firm of solicitors ('the firm'). In March 1998, the applicant had left her employment at the firm to go on maternity leave and returned in July 1999. On 28 May 1998 two letters were sent from the firm to the respondent concerning its client's ('D') housing assessment in an ongoing dispute with the respondent. There was evidence from an officer of the respondent that the firm had informed the respondent that the person dealing with the matter was the applicant. The applicant was suspended in July 1999, and was subsequently notified that her conduct did not constitute gross misconduct and that her suspension would be lifted. A report following the respondent's investigation stated that D had stated that on the advice of her solicitor she had changed her details concerning her sons' mental state. D did not state the name of her solicitor. Prior to an intended disciplinary hearing on 30 September 1999, the applicant was told by the respondent on 24 September 1999 that her employment had ceased and that disciplinary action against her would not be pursued. The applicant denied writing the letters or that she had acted for D in her dispute with the respondent. The allegation that the applicant had advised D to make a fraudulent claim was raised for the first time at the hearing. The tribunal rejected the applicant's evidence and held that a reasonable employer would take the same view on the evidence. The EAT held that the tribunal was entitled to reach the conclusions it had. On appeal, the applicant argued that the tribunal ought not to have reached the conclusion that she had sent the letters. The respondent argued that as the applicant had been found by the tribunal to be involved in writing the letters, it could be inferred from what D said about being advised by her solicitor that that solicitor was the applicant.HELD: (1) The tribunal was entitled to reach the conclusion that the applicant had written the letters. It was doubtful whether the applicant had had a fair hearing on whether she knew the letters were fraudulent, as the issue arose for the first time during cross-examination. (2) The tribunal had asked itself the hypothetical question of what would have happened at a disciplinary hearing, and its finding depended on a further finding that the hearing would result in a finding that the applicant had acted fraudulently in sending the letter. Although the question was hypothetical, the issue should still be approached bearing in mind s.98(4) Employment Rights Act 1996 and British Home Stores v Burchell (1978) IRLR 379. No evidence had been obtained to support the case that the solicitor to which D had referred was the applicant. The second and third requirements of Burchell (supra) were not complied with. (3) (per Peter Gibson LJ) The respondent should have amended the notice of appearance to make clear that the allegation was one of fraud.Appeal allowed. Matter remitted.

[2003] EWCA Civ 273

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