BHS v Burchell

The three-part misconduct test every tribunal uses

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Does Burchell apply to capability dismissals (poor performance)?

No. Burchell is specific to misconduct dismissals. Capability dismissals use a different framework focused on opportunity, performance improvement plans, and adequate training — not guilt and investigation.

My employer had CCTV footage but didn’t show it to me until the disciplinary hearing. Does that fail Burchell?

It’s problematic but not automatically fatal. If the CCTV was shown at the hearing and you had a fair opportunity to respond, Burchell may be satisfied. Late disclosure that prejudices your response weakens the investigation limb.

Does lying at the disciplinary hearing change the Burchell analysis?

It can. If you gave an explanation and the employer found you not credible, that strengthens their Burchell defence. The test is still whether it was reasonable to disbelieve you.

If I lose at the disciplinary hearing, does the appeal cure a deficient original hearing?

Only if the appeal is a full rehearing with a different decision-maker who genuinely reconsiders the evidence. An appeal that rubber-stamps the original decision doesn’t fix Burchell breaches.

Does a criminal acquittal affect the Burchell test?

Not directly. Tribunals apply the civil standard (balance of probabilities) rather than the criminal standard. An acquittal is strong evidence that the employer’s belief may not be reasonable, but it isn’t determinative.

Last updated: April 2026

A misconduct dismissal is fair only if the employer (1) genuinely believed the employee was guilty, (2) had reasonable grounds for that belief, and (3) conducted a reasonable investigation.

Ms Burchell was dismissed on suspicion of theft. The EAT (Arnold J) set out the framework for assessing whether a dismissal for misconduct is fair. Despite being an EAT decision, it is treated as settled law and applied in virtually every misconduct case.

Part 1: Genuine belief

The employer must actually have believed the employee was guilty. A dismissal driven by a wish to remove someone, with guilt as a pretext, fails this test. This limb is assessed subjectively — what did this employer actually believe? — not what you might have believed. If the actual decision-maker had a genuine belief, even if unreasonable, this limb is satisfied.

Part 2: Reasonable grounds

There must have been objectively reasonable grounds for that belief. The employer can't rely solely on a manager's instinct or hunch. Evidence must support the belief. This is the limb where exculpatory evidence that was ignored becomes important. If the employer had evidence pointing to innocence and ignored it, this limb fails.

Part 3: Reasonable investigation

An investigation proportionate to the seriousness of the allegation is required. Not perfect — but real. This means: interviewing the accused, putting the allegation to them specifically, considering their explanation, seeking relevant evidence, and documenting the process. An investigation that takes no account of the employee's response fails this limb.

How Burchell interacts with the band of reasonable responses

Even if all three Burchell limbs are satisfied, the decision to dismiss must also fall within the band of reasonable responses. A first-offence minor misconduct dismissal may satisfy all three limbs of Burchell but still be outside the band because it's manifestly disproportionate. Burchell is a threshold; the band is a separate hurdle.

Common Burchell failures

Key weaknesses to look for:

• Conclusions reached before the disciplinary hearing:
• the decision-maker had already decided guilt before hearing the employee's account
• Evidence not put to the employee:
• documents, witness statements, or allegations raised for the first time at disciplinary or hearing
• Investigation conducted by the decision-maker:
• the same person investigates and decides, creating bias
• Failure to consider the employee's explanation:
• the response is dismissed without serious engagement
• Inconsistent treatment of comparators:
• others who did similar things were not dismissed or investigated less thoroughly

Burchell and the standard of proof

The test applies the civil standard of balance of probabilities, not criminal "beyond reasonable doubt." The employer must show it was more likely than not that the employee was guilty. If there's genuine doubt — "it could have been either of two employees" — the test may not be met.

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BHS v Burchell [1980] ICR 303 (BAILII)

Questions people ask

Does Burchell apply to capability dismissals (poor performance)?

No. Burchell is specific to misconduct dismissals. Capability dismissals use a different framework: was the employee given a fair opportunity to improve? Was a performance improvement plan used? Was adequate training provided? The test is about opportunity and support, not guilt and investigation.

My employer had CCTV footage but didn't show it to me until the disciplinary hearing. Does that fail Burchell?

It's problematic but doesn't automatically fail Burchell. If the CCTV was shown at the disciplinary hearing and you had a fair opportunity to respond and explain, Burchell may be satisfied. However, if you're denied the chance to see the evidence in advance and prepare a response, the investigation (part 3) becomes questionable. Show evidence that the late disclosure prejudiced your response.

Does lying at the disciplinary hearing change the Burchell analysis?

It can. If you gave an explanation at the hearing and the employer found you not credible, that strengthens their Burchell defence — they had grounds to believe you were guilty. However, the assessment is still whether it was reasonable to disbelieve you. Lying about something minor doesn't justify finding you guilty of something serious.

If I lose at the disciplinary hearing, does the appeal cure a deficient original hearing?

Only if the appeal is a full rehearing with a different decision-maker. If the appeal merely confirms the original decision, it doesn't cure original unfairness. If the appeal properly reconsiders the evidence and reaches the same conclusion independently, that's stronger for the employer. But an appeal that rubber-stamps the original decision without genuine reconsideration doesn't fix Burchell breaches.

Does a criminal acquittal affect the Burchell test?

Not directly. Employment tribunals apply the civil standard (balance of probabilities), not the criminal standard (beyond reasonable doubt). You could be acquitted of theft in criminal court but still be found more likely guilty in a tribunal. However, an acquittal is strong evidence that the employer's grounds for belief may not be reasonable. It's not determinative but carries significant weight.

Does the employer's witness need to testify at the tribunal hearing?

Not necessarily, but it's important. The tribunal can test evidence through cross-examination. If the employer relies on statements from witnesses who don't testify, the tribunal may find it harder to accept that evidence. The credibility of accusers can be attacked. If you have contradictory evidence or the witness can be cross-examined, do so.

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BHS v Burchell [1978]

Employment Rights Act 1996