What is the Burchell Test Applied by the ET

The Burchell test is a cornerstone of unfair dismissal law in the United Kingdom, specifically when an employee's conduct is the reason for their dismissal. Established in British Home Stores Ltd v Burchell in 1978, this test provides a framework for employment tribunals to assess whether an employer acted reasonably in dismissing an employee for misconduct.

Origins and Purpose of the Burchell Test

The Burchell test emerged from case law to guide tribunals in determining the fairness of a dismissal under section 98(4) of the Employment Rights Act 1996 (ERA 1996). Misconduct is one of the five potentially fair reasons for dismissing an employee, and the employer must demonstrate that the conduct was the reason for dismissal. However, the employer does not need to prove the employee was actually guilty; rather, the tribunal assesses whether the employer had a genuine and reasonable belief in the misconduct, based on a reasonable investigation. The test's criteria were initially directed more towards establishing the reason for dismissal under sections 98(1) to (3) ERA 1996, but case law, particularly Post Office v Foley, clarified that they are elements of the section 98(4) test.

Components of the Burchell Test

A dismissal for misconduct will only be considered fair if, at the time of dismissal, the employer met three key criteria:

1. Genuine Belief

   The employer genuinely believed the employee to be guilty of misconduct. This belief does not have to be correct or justified, only genuine.

2. Reasonable Grounds

   The employer had reasonable grounds for that belief. Tribunals must objectively judge whether the employer acted reasonably in forming this belief, not whether the tribunal would have believed the employee to be guilty.

3. Reasonable Investigation

   At the time of holding that belief, the employer had carried out as much investigation as was reasonable in the circumstances.

The burden of proof for these three stages is neutral; it is neither on the employer nor the employee to prove that the test was satisfied.

Relationship with the "Range of Reasonable Responses" Test

The Burchell test is intrinsically linked with the "range of reasonable responses" test, which derives from Iceland Frozen Foods Ltd v Jones. After the employer establishes a potentially fair reason, the tribunal asks whether the employer's decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances might have adopted. This applies both to the decision to dismiss and to the investigation itself.

A crucial aspect is that tribunals must avoid a "substitution mindset". It is irrelevant whether the tribunal would have dismissed the employee if it had been in the employer's shoes. The tribunal must not substitute its own view for that of the employer, but rather determine whether the employer's decision was within the objective standards of a hypothetical reasonable employer. Failing to apply this principle properly can lead to a tribunal's decision being overturned.

Key Aspect: Reasonable Investigation

The requirement for a reasonable investigation is a central pillar of the Burchell test. Its thoroughness depends heavily on the specific circumstances of the case.

How Thorough Does the Investigation Have to Be?

An employer is not required to extensively investigate every line of defence advanced by an employee; what matters is the reasonableness of the investigation as a whole. The required degree of investigation depends on factors such as the strength of the prima facie case and the seriousness of the allegations.

• Strength of Prima Facie Case

  If an employee is "virtually caught in the act," less investigation may be needed than in cases based on pure inference.

• Seriousness of Allegations

  When charges are particularly serious or have far-reaching effects on an employee (e.g., criminal misbehaviour, potential career blight, or deportation), the investigation should be particularly rigorous and careful. In such cases, the investigator should look for evidence that might exculpate the employee as much as for evidence proving the charges, maintaining an even-handed approach. This principle was reinforced in A v B and Salford Royal NHS Foundation Trust v Roldan. However, tribunals must still apply the range of reasonable responses test, taking into account the nature and consequences of the allegations.

• Can an investigation be "too thorough"?

  The EAT has commented that an investigation is "never likely" to be held unreasonable solely for being too thorough, as long as it isn't "overzealous or otherwise unfair".

Even-Handedness in Investigation

An investigation must be even-handed. This means not only seeking evidence against the employee but also exploring evidence that might point to their innocence, especially if the employee is suspended and lacks access to witnesses. For instance, inconsistent witness accounts or conflicts with other views should be followed up on. However, employers are not obliged to "explore every line of inquiry or leave no stone unturned".

Sufficiency for Particular Allegations

If various disciplinary charges could arise from the facts, the employer must clarify the different charges and consider if further investigation is needed for more serious allegations. For example, an investigation sufficient for unauthorised outside work may not be enough to support a fraud allegation. Lack of clarity in framing charges can render an investigation inadequate. Conversely, an investigation can be deemed adequate even if other employees involved are not disciplined, provided there are grounds for differentiation. For serious allegations, like sexual harassment, a failure to interview key witnesses or retrieve readily available evidence (e.g., CCTV) can make a dismissal unfair.

Where the Employee Admits Misconduct

Generally, if an employee admits misconduct, an extensive investigation may not be necessary. However, this is not always the case; a reasonable employer might still need to investigate, for example, if new information comes to light. If an employee admits to a breach of rules but argues the employer condoned the practice, further investigation may be required to assess the conflict of evidence. Even with admitted misconduct, the investigation should be reasonable, as seen in Borg-Neal v Lloyds Banking Group Plc, where a bank unfairly dismissed an employee for using an offensive term in training despite his admission, due to an inadequate investigation into the context and consequences.

Health or Disability-Related Issues

If an employee's ill-health or disability may have contributed to their misconduct, failing to investigate this link before dismissal is likely to render the dismissal unfair. Employers should obtain occupational health reports where relevant, particularly if the employee's state of mind is an issue or if the employer is a large concern with substantial resources. However, if an employee refuses to participate in an investigation into their health, dismissal might still be considered fair. It is also important to remember that an underlying condition like Autistic Spectrum Disorder (ASD) does not grant impunity for severe misconduct if the conduct is not a consequence of the ASD, or if it is so egregious as to justify dismissal regardless.

Where There Is More Than One Suspect

In situations with multiple suspects where the individual perpetrator cannot be identified, the Burchell test is adapted. An employer may fairly dismiss all members of a group of suspected offenders, even if this means dismissing "innocents," provided: an act justifying dismissal was committed; a reasonable investigation occurred; the employer reasonably believed one or more persons committed the act; the group of suspects was reasonably identified and each could have committed it; and the individual perpetrator could not reasonably be identified within the group.

Criticisms and Potential Challenges to the Burchell Test

Despite its long-standing application, the Burchell test has faced criticism. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court, while upholding a dismissal, questioned the correctness of the Burchell test. Lord Wilson noted that the three requirements of Burchell "do not well fit the inquiry mandated by what is now section 98(4)". Still, he concluded that "no harm has been done" in its application, as case law has developed the range of reasonable responses test.

Lady Hale, in her concurring judgment, was more explicit, suggesting that a future case could provide an opportunity to reconsider two points of law of general public importance: whether a conduct-based dismissal can be fair if the conduct is not a breach of contract, and whether the Burchell approach itself is correct. She observed that arguments exist on both sides of these points. This has been interpreted as the Supreme Court inviting a challenge to this 40-year-old precedent.

However, the prospect of a successful challenge is considered slim due to the high costs involved in pursuing an appeal to the Supreme Court, which would often exceed the statutory cap on unfair dismissal compensation. Nevertheless, the underlying tenets of a reasonable belief in guilt and a reasonable investigation are widely considered "unimpeachable and still valid".

Conclusion

The Burchell test remains a fundamental principle in UK unfair dismissal law concerning misconduct. It mandates that employers must genuinely believe an employee is guilty of misconduct, have reasonable grounds for that belief, and base it on a reasonable investigation. This test is then applied within the broader "range of reasonable responses" framework, ensuring tribunals assess the employer's actions objectively without substituting their own judgment. While the Supreme Court has hinted at potential academic challenges to its foundation, the practical application of its principles, particularly the emphasis on a fair and thorough investigation, continues to be central to determining the fairness of misconduct dismissals. Employers must also consider other factors, such as the Acas Code of Practice, consistency in sanctions, and mitigating circumstances, to ensure fairness.

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