A staple in English Employment Law case law, the Burchell Test is used in almost every unfair dismissal case heard in the Employment Tribunal.
Established in the case of British Home Stores v Burchell, the test sets out 3 questions which the tribunal will consider in unfair dismissal cases involving conduct issues.
The Test Of Fairness
For an employer to ensure that a dismissal is fair, they first require a fair reason. The reason can be one of 5 fair reasons: conduct, capability, redundancy, breach of statutory restriction or some other substantial reason.
An employer also needs to ensure that they are acting reasonably by treating that reason as sufficient to justify dismissal in all the circumstances.
When considering if an employer has acted reasonably, the tribunal will consider 3 questions referred to as the Burchell Test:
- Did the employer have a genuine belief in the employee’s guilt?
- Was that belief formed on reasonable grounds?
- Did the employer carry out a reasonable investigation?
When considering the three questions, it is the employer’s responsibility to prove that they had a genuine belief in the employee’s guilt. For the second and third questions, the burden of proof is neutral.
A Reasonable Investigation
To show that the belief was formed on reasonable grounds an employer is required to carry out a reasonable investigation. Employers can rely on their disciplinary policies and refer to the ACAS Code of Practice on Disciplinary and Grievance procedures for guidance on how to carry out a reasonable investigation.
The Code of Practice accepts that employers may not always have to carry out all steps set out within it, but it emphasises that an employer must deal with issues fairly. This will usually involve:
- Acting consistently
- Carrying out necessary investigations to establish facts
- Informing employees of the nature of the problem
- Giving employees opportunities to put their case forward before any decisions are made
- Allowing employees to be accompanied to formal meetings and
- Offering a right of appeal against any formal decision.
If an employer can demonstrate they have acted in accordance with the above, they are likely to be able to show they have complied with the second and third questions in the Burchell Test and will help to ensure they can prove the dismissal was fair.
Expert Support from Consilia Legal
At Consilia Legal our Employment Law team has extensive experience in Employment Tribunals and have represented businesses in tribunal hearings with much success.
For a free initial discussion, please do not hesitate to contact us on 0113 322 9222 or email enquiries@consilialegal.co.uk.