Our blog is a hub for HR insights, trends, and expert advice on all things related to HR, recruitment, and workforce management. We’re dedicated to sharing our knowledge, fostering innovation, and providing valuable resources for businesses and HR professionals.
Latest News
11th July 2025
Handling misconduct fairly is one of the most challenging aspects of managing people.
Employers are expected to strike a balance between protecting their business and treating accused employees fairly, particularly when considering dismissal.
Understanding the principles that underpin fair disciplinary decisions is essential to avoid costly disputes and maintaining good practice.
One of the most important frameworks that Employment Tribunals use to assess whether a dismissal was fair is known as the Burchell Test, a standard that continues to influence employment law decades after it was established.
In this blog post, we’ll explore what the Burchell Test is, its origin, how it’s applied in cases of alleged misconduct, why getting it wrong can expose your business to significant risks, and how Sapphire HR can support you in navigating these situations confidently.
The Burchell Test is a legal framework that determines whether an employer acted fairly when dismissing an employee for misconduct.
It focuses not on whether an employee was guilty, but on how the employer handled the dismissal process.
This test is particularly important in cases that reach Employment Tribunals.
When determining whether a misconduct dismissal was fair, the tribunal does not re-investigate the facts. Instead, it looks at whether the employer followed the Burchell principles when making their decision.
The Burchell Test comes down to three key elements:
The employer must have had a genuine belief that the employee was guilty of the alleged misconduct.
This does not mean the employer has to prove beyond doubt that the misconduct occurred, but it does mean that the decision must be made sincerely, not as a pretext to justify dismissal for other reasons.
The belief should arise naturally from the evidence gathered during the disciplinary process.
Genuine belief must be supported by reasonable grounds, meaning there was a factual basis for it.
The employer must be able to point to clear information or evidence available at the time, such as witness statements, documents, or records, to justify that misconduct had taken place.
Decisions made based on assumptions, bias, or incomplete information are unlikely to pass this part of the test.
Before deciding to dismiss an employee, the employer must conduct an investigation reasonable to the circumstances.
What is reasonable will vary depending on the seriousness of the allegations and what is practical, but in all cases, the investigation should be fair and balanced. This means:
A superficial or rushed investigation can undermine a genuine belief and reasonable grounds, ultimately rendering a dismissal procedurally unfair.
The Burchell Test takes its name from the landmark employment law case British Home Stores Ltd (BHS) v Burchell (1980).
This case has shaped how tribunals assess the fairness of misconduct dismissals ever since.
Mrs Burchell was dismissed by her employer, British Home Stores (BHS), after being accused of falsely claiming wages for hours she had not worked.
BHS conducted an investigation and, based on the evidence they had at the time, concluded that she had acted dishonestly and decided to dismiss her for gross misconduct.
Mrs Burchell challenged the dismissal, claiming it was unfair. She argued that she had not been dishonest, and therefore, BHS had no valid reason to dismiss her.
The Employment Appeal Tribunal (EAT) did not rule on whether Mrs Burchell was guilty of dishonesty. Instead, it focused on the process BHS had followed and the reasoning behind their decision.
It found that BHS had acted fairly because it had followed a reasonable process. The employer had gathered evidence, held disciplinary meetings, and reached a genuine belief based on reasonable grounds.
As a result, the tribunal upheld the dismissal as fair. The key point was that the employer does not have to prove misconduct as if in a criminal trial, only that it had an honest belief, supported by reasonable grounds, after a reasonable investigation.
This led to the formation of the now well-established three-stage Burchell Test.
The principles developed from this case provide a clear framework that helps protect employees from arbitrary decisions while also giving employers confidence that if they follow a fair and reasonable process, their decisions will be less likely to be overturned.
Understanding Burchell Tests is essential for employers and managers because it outlines exactly what a tribunal will scrutinise.
Ultimately, the Burchell principles remind organisations that robust procedures are more than just a checkbox; they are a safeguard against legal risk and a foundation for workplace trust. They are a powerful reminder that even when misconduct appears to be clear-cut, failing to follow due process can result in an unfair dismissal.
When applying Burchell principles, employers should prioritise process over outcome. To meet that standard, managers should:
From the moment concerns are raised, keep a clear paper trail. Record who raised the issue, what was said, and when. Include copies of any correspondence, evidence collected, and notes from each meeting.
Well-organised records not only demonstrate that you acted fairly but also make it easier to respond confidently if your decision is later questioned.
The depth of your investigation should match the seriousness of the allegation. For example, claims of gross misconduct, such as fraud or harassment, will require more extensive enquiries than minor misconduct issues.
However, even in less serious cases, a basic fact-finding exercise and an opportunity for the employee to respond are still essential.
Approach every situation with an open mind. Do not let unrelated performance issues or personal frustrations cloud your judgement.
Focus strictly on the evidence relevant to the allegation and be prepared to consider information that may support the employee’s version of events.
Your organisation’s disciplinary policy should reflect the principles established in Burchell. Make sure you apply those procedures consistently to all employees, without shortcuts.
Following your own process not only strengthens your legal position but also demonstrates to employees that you value fairness.
When it comes to gross misconduct, it’s particularly important to approach the situation with care. Even if the offence appears severe, skipping procedural steps can still render a dismissal unfair.
Misconduct can take many forms, and not all disciplinary issues carry the same weight.
Understanding the distinctions between levels of misconduct helps to ensure that your response is appropriate, proportionate, and defendable.
This typically includes minor issues that can be resolved informally or with a verbal or written warning.
Examples might include occasional lateness, minor breaches of company policy, or inappropriate language in the workplace. These are unlikely to justify dismissal on their own, especially if it’s a first offence.
This is a step higher. This includes repeated or more disruptive behaviour, such as persistent poor timekeeping, refusing to follow reasonable instructions, or the misuse of company equipment.
While not usually enough to justify immediate dismissal, it can lead to formal disciplinary action and, in some cases, dismissal following warnings.
This covers the most serious breaches of conduct, acts that fundamentally break the trust and confidence between employer and employee.
Examples include theft, fraud, physical violence, harassment, and serious health and safety violations. These incidents may justify summary dismissal, meaning termination without notice or pay in lieu.
Failing to follow a fair and thorough disciplinary process without considering Burchell principles can expose employers to serious consequences and risk facing an unfair dismissal claim.
Such claims can lead to:
If a dismissal is found to be procedurally or substantively unfair, employers may face significant financial penalties.
Tribunals may order compensation for employees, including basic and compensatory awards. Even if the compensation is modest, legal fees and preparation time can quickly increase the overall cost.
Employment Tribunal decisions are often published online, making them available to potential employees, clients, and the general public.
A finding of unfair dismissal can undermine your organisation’s credibility and send a negative message about its workplace culture and management practices.
Defending a claim can be time-consuming and emotionally draining for managers, HR teams, and witnesses.
Preparing statements, attending hearings, and dealing with legal correspondence can take time away from day-to-day operations, creating a stressful working environment.
Navigating a misconduct case can be complicated and time-consuming. At Sapphire HR, we make it easier for you to manage disciplinary issues confidently, compliantly, and without unnecessary risk.
Our experienced consultants can assist you in conducting fair and thorough investigations that follow Burchell principles. Whether you need us to lead the process or advise behind the scenes, we’ll make sure you have clear evidence and strong documentation every step of the way.
We provide practical guidance on how to handle misconduct cases, from issuing hearing invitations to determining appropriate outcomes. With expert advice on hand, you can be confident that your process is both reasonable and defendable.
Clear, consistent paperwork is critical for protecting your organisation. We supply tailored letters, forms, and policies to assist you in accurately and professionally documenting each stage of a disciplinary matter.
We deliver training and resources to equip your managers with the skills to handle difficult conversations and follow correct procedures. This helps prevent errors that can lead to tribunal claims.
Whether you prefer ongoing support or flexible help as needed, we have solutions to meet your requirements.
Our HR Unlimited service is a comprehensive outsourcing package that gives you unlimited access to HR advice, document drafting, and employment law updates. Ideal for businesses who want the reassurance of a complete HR function at a fixed monthly cost.
Our HR On Demand (HROD) service is a flexible option for employers who need expert HR support on a project-by-project basis, such as disciplinary investigations.
Our goal is simple: to assist you in effectively resolving issues while minimising risk, disruption, and stress.
Need help with a misconduct case? Speak to our HR experts today.
Here to Help, Not Replace Experts:
The information contained in this blog presented for general informational purposes only. While we strive to provide accurate and up-to-date content, legal and HR practices can evolve rapidly. This blog is not a substitute for professional advice.
For specific questions or concerns regarding your unique situation, we highly recommend taking professional advice and booking a consultation with a Sapphire HR Consultant. Our consultants are experts in the field and can provide tailored guidance to address your specific needs.
We aim to work truly in partnership with our client organisations and to develop a high-quality, competent HR Service for all clients, the HR Provider that they can rely on and who gets to understand the culture and vision of your business.
