The idea of a ‘reasonable belief’ is crucial to areas such as ‘Whistleblowing’ protection, where a worker who makes a protected disclosure does not have to prove that what they believed to be wrong was in fact true – merely that they reasonably believed it was. There has been very little case law on how an employee’s belief might be evaluated under this heading. It is likely the test will be less robust than the one applied to an employer’s beliefs (see below).

 

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible. Employers have to show that they reasonably believed this to be so.

 

A reasonable belief is arrived at after a robust process which means:

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible. Employers can make up their minds on the basis of the facts they have before them. That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

 

The legal idea of a ‘reasonable belief’ by an employer is linked with the idea of making enquiries, testing the hypothesis by asking the individual, giving them an opportunity to give their own version of events, and then arriving at a conclusion.   The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

 

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be. There is not much room here either for ‘gut feelings’. Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for). Gut feeling will be a reason to investigate, but it is not an investigation.

 

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking. What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.   HR can play a powerful role here – in challenging the evidence and the processes with a view to seeing how robust they are.

 

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site - http://irenicon.wordpress.com/