The Burchell Test is a legal principle in UK employment law used to determine whether an employer has acted fairly in dismissing an employee for misconduct. This test originates from the case British Home Stores Ltd v Burchell (1980), which established a three-part framework for assessing the fairness of a dismissal under the Employment Rights Act 1996. When considering if a dismissal was fair, an Employment Tribunal applies the Burchell Test to evaluate the reasonableness of the employer’s actions.
If an employee brings an unfair dismissal claim against you following a misconduct dismissal, the tribunal will look to examine the disciplinary procedure you took to determine if the dismissal was fair and lawful. Claims are often made no matter how fair and transparent the process followed was, but being able to respond confidently to the allegations is preferable to being ‘on the backfoot’.
In this guide, we explain the Burchell test that is used by Tribunals when determining the fairness of a dismissal procedure.
The law on fair dismissal
Section 94 of the Employment Rights Act 1996 provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and whether a dismissal is fair or unfair depends on whether the organisation acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).
In determining whether a dismissal is fair, the Employment Tribunal will consider procedural fairness and whether a fair procedure was followed, i.e. the ACAS Code of Practice.
The ACAS Code explains that “some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.” Therefore unless the misconduct is so severe that it requires instant dismissal without following any procedure (such as, where there is the threat of immediate danger to life or severe harm to the business) even gross misconduct cases should be dealt with in the normal way, although the employer may wish to consider suspending the employee on full pay during the investigation if they believe their presence in the workplace could cause harm.
The Code sets out the steps an employer must normally follow before dismissing for misconduct or gross misconduct:
- carry out an investigation to establish the facts of the case;
- notify the employee in writing of the problem;
- hold a meeting with the employee to discuss the problem;
- allow the employee to be accompanied at the meeting;
- decide on appropriate action;
- inform the employee in writing of the action; and
- provide the employee with an opportunity to appeal the decision.
The tribunal will also consider whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal, for example did the decision to dismiss fall within the range of reasonable responses. This test applies to both the decision to dismiss and to the investigation which led to that decision. The tribunal must assess substantive fairness having regard to well known principles established in case law, including satisfying the conditions of the Burchell Test.
British Home Stores Ltd v Burchell: EAT 1978
British Home Stores Ltd v Burchell [1978] IRLR 379 is one of the most well known and often-cited employment law cases. It sets out the test by which tribunals can decide whether employers have acted reasonably in dismissing employees for misconduct and capability issues.
Mrs L was an anonymous colleague of Miss Burchell, a shop worker whose first name is lost to history. Mrs L wanted polychromatic sunglasses and purchased a pair worth £6.99 from the branch of British Home Stores where she worked. Miss Burchell authorised the sale but the docket she signed showed that Mrs L had been charged for a cheaper pair.
In itself, that was not enough for reasonable suspicion of misconduct. But Miss Burchell admitted that she knew the true price of the sunglasses, Mrs L said there had been collusion, and there had been three similar transactions which had also given rise to suspicion. On the balance of probabilities, British Home Stores concluded that Miss Burchell was guilty of dishonesty and, on 28 October 1977, she was dismissed.
The Employment Appeal Tribunal found that where misconduct is alleged, an employer must genuinely believe the employee is guilty, and must have reasonable grounds for that belief, which must have been reached following a reasonable investigation. It does not have to prove guilt to a criminal standard and it does not have to adopt a procedure akin to that of a criminal investigation.
It explained that British Home Stores could not fairly have cross-examined Mrs L when she did not have her own representation and, having formed a reasonable belief in Miss Burchell’s guilt following a reasonable investigation, it was illogical for a tribunal to expect it to have investigated further or to ask whether its decision would have changed had it done so.
There was no discussion of the question of whether dismissal was an appropriate sanction, and there was no reference to a band or range of reasonable responses. The law about these matters was decided by a different division of the Employment Appeal Tribunal in Iceland Frozen Food v Jones in 1982 and has come to be seen as part of the Burchell test but, in reality, it has nothing to do with Burchell at all.
On appeal, the tribunal judge stated:
“What the tribunal has to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, … the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation in the matter as was reasonable in all the circumstances of the case… It is not relevant, as we think, that the tribunal would itself share that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them.”
In other words, employment tribunals should not concern themselves with decisions about whether an employee was in fact guilty but whether it was reasonable of the employer to decide that they were guilty and then dismiss them. In other words, did the employer come to a reasonable decision after a reasonable investigation?
What is the Burchell Test?
Under the Burchell Test, the employer must show that:
- It believed the employee was guilty of misconduct.
- If yes, there were reasonable grounds upon which to sustain that belief.
- At the stage at which the belief was formed, there was as much investigation into the matter as was reasonable in all the circumstances of the case.
Importantly, the Burchell test is not objective, and the employer need only be satisfied on balance of probabilities.
This 3-stage test (often number 3 in particular) are the main battle grounds in unfair dismissal claims.
The Tribunal will also look at the procedural steps taken in conducting the disciplinary process, generally, the following must be present for the dismissal to be fair:
- The employee must be made aware of the case against them.
- The employee must have an opportunity to state their case.
- There must be the right to appeal the dismissal.
The Acas Code goes further than the above and is important to consider and apply.
Did the decision to dismiss fall within the band of reasonable responses?
The Tribunal will consider the decision to dismiss against the object standard of the reasonable employer and not by reference to its own subjective view. The Tribunal must not substitute its own view as to whether dismissal was the correct standard, but rather decide if the employer acted within the band of reasonable responses – generally this is difficult for employees to beat.
Examples of what might make a decision to dismiss appear unreasonable could include:
- Not conducting an investigation or conducting an inadequate investigation
- Not giving sufficient regard to evidence that points towards an employees innocence
- Not taking an employees previous long standing good conduct and integrity into consideration when considering the truth of any statement made by them
- Choosing to dismiss an employee for gross misconduct for a trivial conduct matter
Warnings before dismissal
If an employee wants to argue that a previous final warning was unwarranted, they would need to show that the final warning was “manifestly inappropriate”, a higher threshold than the employer’s Burchell test of reasonableness of a dismissal. If they can succeed in arguing that, the tribunal would then need to engage in a factual inquiry and detailed scrutiny of the circumstances in which that sanction was applied, and this could result in any dismissal that relied upon this warning as unfair.
In practice, unless an employer goes through the motions of a succession of warnings simply as a formality before dismissal, they should be able to defend any unfair dismissal claim. But given the final warning could nonetheless be open to challenge, erring on the side of caution could protect them in the longer-term – professional support in handling a disciplinary would typically only cost a few hundred pounds (or be included in the service for retained clients), an investment that could hardly be frivolous if it saves the employer an award for unfair dismissal. Employers can even minimise the fees by using the disciplinary guides provided below, and having their proposed actions reviewed by us, so while the risks of relying on a previous final warning to justify dismissal are low, having this confirmed by professionals offers employers even more certainty.
important difference between the role of the investigator and that of the disciplinary officer. The investigator must establish the facts of the case and decide if there are grounds for convening a disciplinary hearing, without communicating to the disciplinary hearer whether they consider an individual to be ‘guilty’ or ‘innocent’. The disciplinary hearer should then consider the matter independently of the investigator’s conclusions and decide whether to impose a disciplinary sanction.
Disciplinary policy
It is important for an employer to have a well written disciplinary policy as it may be able to rely on this in carrying out its investigation. The ACAS Code explains that an employer’s disciplinary policy should give examples of acts which the employer regards as acts of gross misconduct. These should be non-exhaustive and will vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination. It is very likely that biting in the workplace can lead an employer to dismiss fairly for gross misconduct, provided it follows a proper procedure.
Documenting misconduct
All disciplinary proceedings should be documented. The records that you keep should include, among other things:
- Details of the allegation or allegations
- Details of the investigation, the investigation outcome and recommendations regarding whether formal disciplinary proceedings should follow
- Copies of correspondence sent to the employee, along with all accompanying documents (such as witness statements)
- Notes from the disciplinary hearing, the disciplinary outcome letter and details of any sanction imposed
- Notes from any appeal hearing and the appeal outcome letter
- As far as possible, the reasons for decisions taken at various stages. For example, an employer may subsequently be required to justify the choice of investigator or chairperson of the disciplinary hearing, or why, following the investigation, it was decided that disciplinary proceedings were warranted
It is important to produce detailed notes, as this will make it easier to recollect events and decisions taken at the time. You should ensure that all records are clear and concise, bearing in mind that it may be necessary not only to refer to them, but also to produce them during the course of any subsequent disciplinary hearing or tribunal proceedings, or if the employee makes a data subject access request.
Questions to consider before you dismiss someone
Those charged with making the final decision on a misconduct dismissal should consider the following:
- Am I familiar with our own disciplinary procedure?
- Have we complied with it?
- Was the employee given notice of the allegations and sufficient time to consider the materials / evidence to be used at the disciplinary hearing?
- Do I genuinely believe the employee was guilty of the charges and can I explain why with reference to the evidence?
- If yes, are there reasonable grounds, on the balance of probabilities, to sustain that believe?
- Has there been a thorough investigation? Have there been any points raised that have not been investigated?
- Have I considered the defence / explanation put forward by the employee?
- Is the misconduct sufficiently serious to justify the disciplinary sanction I am considering? Can I explain on what basis?
- Have I considered any mitigating circumstances advanced or that should be considered? (such as length of service, previous disciplinary record, points made by or on behalf of the employee.)
- If the decision is to dismiss, is it within the range of reasonable responses open to a reasonable employer in the same position?
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
