How to prove unfair dismissal

You don't have to prove your employer acted badly — the tribunal judges whether they acted reasonably. But you do need the right evidence. Here is exactly what to gather and how to use it.

Who has the burden of proof in an unfair dismissal case?

In unfair dismissal, the burden is split. The employer must first show it had a potentially fair reason for dismissal (one of the five: capability, conduct, redundancy, statutory illegality, or "some other substantial reason"). Once the employer establishes a potentially fair reason, the tribunal then decides whether the dismissal was actually fair — looking at whether the employer acted reasonably. You do not need to prove the dismissal was unfair; the tribunal judges it objectively.

What counts as evidence in an unfair dismissal claim?

Key evidence includes: your employment contract and any disciplinary or capability policies, emails and letters about the dismissal or the conduct leading to it, disciplinary hearing invitations, notes, and outcome letters, any appeal correspondence, payslips (for the Basic Award calculation), evidence of the losses you suffered (job applications, rejection letters, new earnings), and witness statements from colleagues who can speak to the relevant facts.

Can I win unfair dismissal if I was dismissed for misconduct?

Yes — even if you did something wrong. The key is the process your employer followed. Under the Burchell test, the tribunal asks: Did the employer genuinely believe you were guilty? Did they have reasonable grounds for that belief? Did they carry out as much investigation as was reasonable? If the answer to any of these is no — or if the dismissal was disproportionate to the misconduct — the dismissal may still be unfair.

Does it matter if my employer did not follow their own disciplinary procedure?

Yes, significantly. Failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures — or the employer's own policy — is strong evidence that the dismissal was unfair. Common procedural failures include: not giving adequate warning, not allowing the employee to be accompanied, not conducting a proper investigation, not allowing a right of appeal, and making a decision before the hearing.

What is the Burchell test?

The Burchell test (from British Home Stores v Burchell [1978]) is the legal test for misconduct dismissals. The tribunal asks: (1) Did the employer genuinely believe in the employee's guilt at the time of dismissal? (2) Did the employer have reasonable grounds for that belief? (3) Did the employer carry out a reasonable investigation? If any element fails, the dismissal is likely to be unfair. However, the employer does not need to prove guilt beyond reasonable doubt — only a genuine and reasonable belief.

How do I get evidence from my employer?

Under UK GDPR, you can send your employer a Subject Access Request (SAR) demanding all personal data they hold about you. This must be answered within 30 days and is free. It can produce emails, disciplinary records, HR notes, performance reviews, and CCTV footage. A SAR is one of the most powerful tools available to self-represented claimants.

What happens if I cannot afford to gather evidence?

Most of the strongest evidence in unfair dismissal cases is free to obtain. Your employer must respond to a Subject Access Request at no cost. The tribunal can also order your employer to disclose documents through a Case Management Order. You can represent yourself without legal costs, and AI tools like Start My Claim can help you identify what evidence you need and how to present it.

How to prove unfair dismissal

Last updated: April 2026

How the burden of proof works

Unlike a criminal trial, in unfair dismissal you don't have to prove anything "beyond reasonable doubt." The burden is shared — and the standard is what a reasonable employer would do.

Evidence to gather — by type

The Burchell test — for misconduct dismissals

If you were dismissed for alleged misconduct, the tribunal applies the

test (British Home Stores v Burchell [1978]). Your employer must show all three elements — and your evidence should challenge whichever element is weakest.

Did your employer actually believe you were guilty?

Was there a reasonable basis for that belief?

Did your employer investigate as much as was reasonable?

Common procedural failures — use these

Even where an employer had a valid reason for dismissal, procedural failures often make a dismissal unfair. These are among the most common and easiest to prove:

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Frequently asked questions

Unfair dismissal explained

What unfair dismissal is, the five fair reasons for dismissal, and how tribunals assess cases.

Evidence for employment tribunal

A complete guide to what evidence you need and how to present it at tribunal.

Subject Access Request template

A ready-to-use SAR template to get all the evidence your employer holds about you.

The Burchell test explained

How the BHS v Burchell test applies in misconduct dismissal cases.

Chances of winning at tribunal

What the statistics say about tribunal outcomes and how to maximise your chances.

How to complete the ET1 form

A guide to completing the ET1 employment tribunal claim form.