The Burchell Test — What Employers Must Prove to Justify a Misconduct Dismissal

Last updated: April 2026 · Content reviewed against current UK employment law

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Does Burchell apply to other dismissal types?

Burchell applies specifically to misconduct dismissals. Capability and redundancy use different fairness frameworks (warning and opportunity to improve, or proper consultation), but Burchell as stated is for misconduct.

Is lying in a disciplinary meeting gross misconduct?

Not automatically. Whether it justifies dismissal depends on context. Lying about a serious matter (like falsely denying theft) might justify dismissal; lying to cover a minor infraction might not.

What if the employer makes no Burchell argument?

Highlight this at the tribunal. Burchell is the legal standard — if the employer doesn’t engage with it, that weakens their case. The tribunal will still apply the test, so make the arguments either way.

Does CCTV evidence that contradicts the allegation mean automatic unfairness?

If clear CCTV exonerated you and the employer failed to review it before dismissal, that’s a serious breach of Burchell’s investigation limb. Dismissal will almost certainly be unfair.

Can an appeals process cure a Burchell failure?

Partly. A genuinely fair, thorough appeal can cure defects, particularly if fresh evidence emerges. An appeal that rubber-stamps the original decision without genuine reconsideration does not cure the defect.

The Burchell Test — What Employers Must Prove to Justify a Misconduct Dismissal

"British Home Stores v Burchell [1980] established that a misconduct dismissal is only fair if the employer genuinely believed the employee was guilty, had reasonable grounds for that belief, and carried out a reasonable investigation."

Where does the Burchell test come from?

British Home Stores Ltd v Burchell [1980] ICR 303

, EAT. The Employment Appeal Tribunal (Arnold J) set out the three-part test in the context of a theft allegation. Despite being an EAT decision (not binding on lower courts), it has been consistently applied by employment tribunals for over 40 years.

The test has become so well-established that it is now the standard legal framework for all misconduct dismissals. Courts and tribunals treat it as binding principle, even though technically it is persuasive authority. No employer should dismiss for misconduct without being able to satisfy all three parts of the Burchell test.

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The three parts of the Burchell test

Part 1: Genuine belief

The employer must actually have believed the employee was guilty — not just suspected or been told to dismiss. This is a subjective test: did the decision-maker genuinely believe the misconduct happened?

This is the easiest part for employers to pass. If a manager genuinely thought an employee stole something (even if mistaken), that satisfies Part 1. The belief just needs to be honest.

Part 2: Reasonable grounds

There must have been objectively reasonable grounds for that belief. The employer cannot rely on a hunch or gut feeling; there must be evidence to support their view. This is an objective test: would a reasonable manager, on the facts known at the time, have believed the same thing?

Example: An employee is accused of gross misconduct on the basis of a tip-off from an anonymous source, with no corroborating evidence. Even if the manager genuinely believed it, Part 2 fails — there are no reasonable grounds for that belief.

Part 3: Reasonable investigation

The employer must have conducted a reasonable investigation before reaching their conclusion. The standard is reasonable, not perfect — employers are not required to conduct a CSI-level forensic enquiry. But corner-cutting or ignoring exculpatory evidence will fail this test.

Examples of failure: Dismissing someone without ever interviewing them; ignoring CCTV evidence that contradicts the allegation; allowing a biased person to lead the investigation; failing to disclose evidence to the employee before the hearing.

How tribunals apply the Burchell test

The tribunal does not decide whether the employee actually committed the misconduct — that is not the question. The question is whether the employer, following a reasonable investigation, had reasonable grounds to believe they did.

Even if Burchell is satisfied (employer had genuine belief, on reasonable grounds, after reasonable investigation), dismissal can still be unfair under the band of reasonable responses test. The tribunal asks: even accepting the employer's belief, was dismissal a reasonable response?

Example: An employee is found to have made a minor administrative error. The employer investigated fairly, genuinely believed the employee was at fault, and had reasonable grounds for that belief. But is dismissal a reasonable response to an honest mistake? Probably not — a fair employer might counsel, retrain, or warn instead.

So Burchell is a gatekeeping test: if you fail Burchell, dismissal is automatically unfair. If you pass it, the tribunal goes on to ask whether dismissal was within the band of reasonable responses.

Common failures under Burchell

Here are the most frequent ways employers fail the Burchell test:

Investigation conducted by a biased manager

If the person investigating has a personal grievance with the accused, or stands to benefit from the dismissal, the investigation fails the reasonableness test. A fair investigation requires impartiality.

Witness statements not put to the accused

If witnesses give evidence against you, you must be given the chance to respond before dismissal. Dismissing someone without letting them challenge witness evidence violates procedural fairness and fails Burchell Part 3.

Failure to disclose evidence to the employee

If the employer has documents, emails, or CCTV that might prove your innocence, they must be disclosed. Suppressing exculpatory evidence fails Part 3.

Conclusion reached before the disciplinary hearing

If the manager has already decided to dismiss before hearing your side, the investigation is a sham and fails Burchell Part 3. The disciplinary meeting must be genuine, not a box-ticking exercise.

Failure to consider alternatives to dismissal

Even if the misconduct is proven, dismissal might not be the only reasonable response. Failing to consider warnings, retraining, or suspension — especially for a first offence — can breach both Burchell Part 3 and the band of reasonable responses test.

Inconsistency with how others are treated

If an employee committed similar misconduct and was merely warned, dismissing you for the same act is likely unfair. The investigation or the application of discipline must be consistent to be reasonable.

Burchell and the band of reasonable responses

These are two separate tests, and both must be passed:

You might pass Burchell (the employer did investigate fairly) but still win your claim if dismissal was too harsh a response to the misconduct. Conversely, even if dismissal is arguably the right sanction, if Burchell fails (the investigation was biased), dismissal is unfair and compensation must be awarded.

Frequently Asked Questions

Burchell applies specifically to misconduct dismissals. However, similar fairness principles apply to other dismissal types. For capability dismissals (poor performance), the employer must have given warning and opportunity to improve. For redundancy, proper consultation is required. But Burchell as stated applies to misconduct.

Not automatically. If you lie in response to a disciplinary allegation, that can be treated as additional misconduct, but whether it justifies dismissal depends on context. Lying to cover up a minor infraction might not be gross misconduct. Lying about a serious matter (e.g., falsely denying theft) might be. The tribunal will assess this under the band of reasonable responses.

If the employer fails to address Burchell in their response (ET3), you should highlight this at the tribunal. The Burchell test is the legal standard — if the employer does not engage with it, that weakens their case. However, the tribunal will still apply the test, so you should make the arguments even if the employer does not.

Does CCTV evidence that contradicts the employer's allegation mean automatic unfairness?

If CCTV clearly shows you did not do what you are accused of, and the employer had access to that CCTV but failed to review it before dismissing, that is a serious breach of Burchell Part 3 (reasonable investigation). Dismissal will almost certainly be unfair. However, if CCTV is ambiguous, the employer can rely on witness evidence. The key is that relevant evidence must be considered.

Partly. If the original investigation was biased or incomplete (failing Burchell), but the appeal is fair and thorough, some tribunals will view the appeal as curing the defect — especially if fresh evidence emerges at appeal. However, if the appeal simply rubber-stamps the original decision without genuine reconsideration, it does not cure the defect. The appeal must be genuinely independent and fair.

Read the original case:

British Home Stores Ltd v Burchell [1980] ICR 303 (BAILII)

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BHS v Burchell [1978]

Employment Rights Act 1996