The Burchell test

The three-part test every employer must satisfy before a misconduct dismissal can be found fair. Established by the Employment Appeal Tribunal in 1978, it has been applied in virtually every misconduct case for over forty years.

Does the Burchell test apply to capability dismissals or redundancy?

No. Burchell was set out in the context of a misconduct dismissal and that is where it applies. Capability dismissals for poor performance or ill health require the employer to have followed a fair procedure giving warnings and an opportunity to improve, but the specific three-part Burchell test does not govern them. Redundancy has its own fairness framework centred on genuine pool, fair selection and meaningful consultation.

What if the employer genuinely believed the employee was guilty but the investigation was inadequate?

Then the dismissal will normally be unfair even though Parts 1 and 2 are satisfied. All three parts must be met. A genuine belief on reasonable grounds is not enough if it was reached after a deficient investigation. The employer cannot shortcut Part 3 and rely on the strength of their belief alone.

Can a thorough appeal cure a flawed investigation at the initial stage?

Partly. Where the original investigation was inadequate but the appeal was genuinely independent, thorough and considered fresh evidence, a tribunal may find that the overall process was fair. However, an appeal that simply reviews the same material and confirms the same outcome without fresh scrutiny does not cure the underlying failure in Part 3.

What if the employer dismissed without holding a disciplinary hearing at all?

Failing to hold any disciplinary hearing before dismissal is almost always fatal to the employer's case. It breaches Part 3 of the Burchell test and the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. A tribunal may also increase compensation by up to 25 per cent for unreasonable failure to follow the Code.

Does passing the Burchell test mean the dismissal was definitely fair?

No. Burchell is a threshold test, not a complete answer. Even if the employer had genuine belief on reasonable grounds after a reasonable investigation, the tribunal must still ask whether dismissal was within the band of reasonable responses to the misconduct. A dismissal for a minor first offence, even after a fair investigation, may fall outside that band and be unfair.

Can clear CCTV evidence exonerating the employee be ignored by the employer?

No. If relevant evidence exists and would bear on the allegation, failing to consider it before dismissal is a serious breach of the investigation requirement under Part 3. A tribunal is very likely to find the dismissal unfair where the employer dismissed without reviewing available evidence that could have cleared the employee.

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Glossary · Employment Tribunal

Last reviewed: June 2026

Employment Tribunal track

requires an employer, before dismissing for misconduct, to show three things: a

that the employee was guilty;

for that belief; and a

reasonable investigation

carried out before the decision was made. Fail any one of the three and the dismissal is unfair.

Where this comes from

British Home Stores Ltd v Burchell [1978] UKEAT 13/78

, reported at [1980] ICR 303 (EAT, Arnold J) — the founding authority setting out the three-part test.

Employment Rights Act 1996, s.98(4)

— the statutory reasonableness test: whether dismissal was in the circumstances within a band of reasonable responses.

Sainsbury's Supermarkets Ltd v Hitt [2003] EWCA Civ 563

— confirmed the band of reasonable responses test applies to the adequacy of the investigation, not just the sanction.

ACAS Code of Practice on Disciplinary and Grievance Procedures 2015

— tribunals must have regard to it; unreasonable failure to follow it attracts up to a 25 per cent uplift.

Employment tribunals

The test in plain English

When an employer dismisses someone for misconduct, the tribunal does not ask whether the employee actually did what they were accused of. That is not the question. The question is whether the employer had a proper basis for believing they did, and went about finding out in a reasonable way. That is what the Burchell test measures.

The test comes from the Employment Appeal Tribunal decision in

British Home Stores Ltd v Burchell

in 1978. Mrs Burchell was dismissed after her employer suspected her of involvement in a staff discount fraud. The EAT, led by Arnold J, set out the framework that employment tribunals should apply when assessing whether a misconduct dismissal was fair. It has been followed in virtually every misconduct case since.

The test has three parts that must all be satisfied. Passing two out of three is not good enough. Failing any single part means the dismissal is unfair, and the tribunal will award compensation.

Genuine belief in guilt

The decision-maker must actually, honestly have believed the employee was guilty of the misconduct alleged. This is a subjective test: it asks what was genuinely going through the mind of the person who decided to dismiss. A dismissal carried out to placate an angry client, to avoid a difficult conversation, or because someone higher up the chain demanded it without the decision-maker personally believing in the guilt fails this part.

In practice this part is rarely the deciding factor. Most managers who dismiss do genuinely believe the employee did something wrong. Where it becomes relevant is in cases of pressure from above, or where the dismissal decision was effectively made before any evidence was gathered.

Reasonable grounds for that belief

The employer must have had objectively reasonable grounds to support their belief. A gut feeling, a rumour, or an anonymous tip-off without corroboration does not provide reasonable grounds. There must be something — documents, witness accounts, records, or other evidence — that would have justified a reasonable employer in believing the misconduct occurred.

The test is not whether the employee was actually guilty. A tribunal does not retry the facts. Even if the employee was innocent, the dismissal can still be fair if the employer had reasonable grounds to believe otherwise. Equally, an employee who was genuinely guilty can still succeed if the employer had no reasonable basis for their belief at the time.

Reasonable investigation

Before reaching their conclusion, the employer must have carried out an investigation that was reasonable in the circumstances. The standard is not perfection: a reasonable investigation, not a flawless one. But it must be genuinely conducted, not a box-ticking exercise with a predetermined outcome.

[2003], the Court of Appeal confirmed that the band of reasonable responses test applies to the investigation as well as the sanction. This means a tribunal should not substitute its own view of how a thorough investigation should have been run; it asks whether the investigation actually conducted was within the range a reasonable employer might have carried out.

Even so, Part 3 generates the most disputes. Common failures include: not interviewing the accused employee; not disclosing witness statements before the disciplinary hearing; using a biased investigator; and ignoring evidence that would have undermined the allegation.

Burchell and the band of reasonable responses

Passing the Burchell test is necessary but not sufficient. Even where all three parts are met, the dismissal can still be unfair if it was not a reasonable response to the misconduct under section 98(4) of the Employment Rights Act 1996.

The band of reasonable responses test asks: was dismissal within the range of sanctions a reasonable employer might have imposed? A range of possible responses exists — warnings, final warnings, demotion, dismissal. If no reasonable employer would have dismissed for what occurred, dismissal falls outside the band even though Burchell is satisfied.

In practice, this second layer protects employees dismissed for minor first offences where a warning would have been the proportionate response, even after a procedurally fair investigation.

How it works in practice

Marcus works as a warehouse supervisor. A colleague reports that he has been removing stock without authorisation. The operations manager, who has had a longstanding personal disagreement with Marcus, is appointed to lead the investigation.

The investigator interviews the reporting colleague but does not interview Marcus or obtain the warehouse CCTV footage, which would have shown the area in question. Marcus is not told before his disciplinary hearing what the colleague said. At the hearing he denies the allegation and asks for the colleague to be interviewed again in his presence. The request is refused. He is dismissed for gross misconduct.

Part 1 — genuine belief

Part 2 — reasonable grounds (one witness, CCTV not checked)

Part 3 — reasonable investigation (biased investigator; statement not disclosed; CCTV ignored)

The investigation failed Part 3 on at least three independent grounds: the investigator had a personal conflict of interest; available evidence (the CCTV) was not reviewed; and Marcus was not given the witness statement before the hearing, which denied him the chance to respond to the specific allegation. Part 2 is also arguable — one uncorroborated witness account, with CCTV left unreviewed, may not have constituted reasonable grounds.

A tribunal is likely to find the dismissal unfair. Marcus would be entitled to a compensatory award. Depending on how his own conduct contributed to any underlying issue, the tribunal might also consider whether to reduce compensation for contributory fault — but unfairness in the process would still be found.

Common pitfalls for claimants

• Focusing only on guilt or innocence.
• The tribunal does not decide whether the misconduct happened. Challenge the process — the investigation, the disclosure of evidence, the fairness of the hearing — not only the factual conclusion reached.
• Missing the ACAS Code angle.
• Alongside Burchell, an unreasonable failure to follow the ACAS Code (such as not holding a disciplinary hearing or not allowing a companion) can increase any compensation by up to 25 per cent. Keep a note of each procedural step the employer skipped.
• Accepting that an appeal cured everything.
• An appeal that repeats the same flawed process does not cure the original defect. If the same decision-maker, the same evidence, and the same conclusions appear at appeal, it is not genuinely remedying the Part 3 failure.
• Overlooking bias in the investigator.
• An investigation run by someone with a personal conflict of interest is not a reasonable investigation, regardless of how many interviews were conducted. Identify and document the conflict, and raise it at the hearing and in any claim.
• Thinking Burchell only applies to the dismissal decision.
• Its underlying principles — genuine belief, reasonable grounds, reasonable investigation — inform the fairness of the entire disciplinary process, including outcomes short of dismissal that might ground a constructive dismissal claim later.

Frequently asked questions

Sources & further reading

• British Home Stores Ltd v Burchell [1978] UKEAT 13/78
• — full judgment (BAILII)
• Employment Rights Act 1996, section 98
• — the statutory reasonableness test (legislation.gov.uk)
• Sainsbury's Supermarkets Ltd v Hitt [2003] EWCA Civ 563
• — band of reasonable responses applies to investigation (BAILII)
• ACAS Code of Practice on Disciplinary and Grievance Procedures 2015
• Employment tribunals

Was your investigation fair?

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Last reviewed: June 2026.

Statutory references checked against the Employment Rights Act 1996 as in force on 25 May 2026.

ACAS Code of Practice on Disciplinary and Grievance Procedures confirmed current.

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