This blog was updated in October 2023.

Case:  British Home Stores -v- Burchell [1978] IRLR 379

After 40 years, this is still one of the key decisions in unfair dismissal cases when considering a dismissal arising from misconduct.

Why is the case so important?

In the case, the Employment Appeal Tribunal outlined a set of factors that should be considered when deciding whether a dismissal for misconduct is fair or unfair. These factors form the basis of what’s known as the Burchell test.

This test is still used in cases today. And so, when the Employment Tribunal is trying to decide whether an employer has acted fairly in dismissing someone for misconduct, the key case that they will almost certainly look at is that of British Home Stores (BHS) -v- Burchell.

What is ‘the Burchell test’?

Essentially, the test considers the reasonableness of an employer’s actions when dismissing an employee for alleged misconduct. It does so by looking at three questions:

  1. Did the employer genuinely believe that the employee was guilty of misconduct?
  2. Did the employer have reasonable grounds on which to base that belief?
  3. Was that belief formed after conducting a reasonable investigation?

It is important to note that the test does not require the employee to have been guilty of misconduct. Even if an employee is able to prove their innocence at a later stage, their employer may still be considered reasonable in dismissing them if they pass the test outlined above.

Should the answers to all three questions above be positive, then there is a distinct possibility that the Tribunal will be able to decide that the employer made a fair decision in dismissing the employee.

However, following the decision in the later case of Iceland Frozen Food -v- Jones [1983] ICR 17, the employer will then have to proceed to demonstrate that the decision to dismiss was within the range of reasonable responses for that misconduct.

To get a better understanding of how the Burchell test works, it is helpful to look at the facts of the case itself.

Facts of the case

Miss Burchell was employed as a shop worker by BHS. At the time, BHS operated a system through which employees could purchase items for themselves at a discount, and a key part of this system was that another staff member had to sign a docket to confirm the discounted purchase.

One of Miss Burchell’s colleagues (referred to anonymously in the case as ‘Mrs L’) wanted to buy a pair of sunglasses, and chose a pair worth £6.99. Miss Birchell signed for the sale, but the docket which she signed listed an alternative, cheaper pair of sunglasses (worth £2.99). Mrs L therefore paid the discounted price of the cheaper pair and received the more expensive sunglasses.

During an investigation by BHS, Mrs L alleged that Miss Birchell had been aware of what happened and they had colluded with each other. The investigation also looked at some other incidents and irregularities in the discount system which involved Miss Birchell.

Ultimately, they came to the conclusion that Miss Burchell had acted dishonestly, and she was accordingly dismissed on the grounds of misconduct on 28th October 1977.

The case was heard by the Industrial Tribunal (the former name of the Employment Tribunal) in December 1977, and by the Employment Appeal Tribunal (EAT) in July 1978.

The decision

The most important extract of the EAT’s decision is set out below:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground 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, there must be established by the employer 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 final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.


“It is not relevant […] that the tribunal would itself have shared that view in those circumstances. It is not relevant […] for the tribunal to examine the quality of the material which the employer had before them

Although the statement is lengthy and may be difficult to understand, it is essentially the basis of the Burchell test as set out earlier in this article.

But it also makes the key point that it is not the role of the Employment Tribunal to consider whether the employee was actually guilty of the alleged misconduct or not when deciding whether their dismissal was fair. Nor should a tribunal assess the merit of the evidence that the employer had available to them. Instead, the EAT held, it should consider the reasonableness of the employer’s decision – and this is what the three questions of the Burchell test aim to help with.

In applying the test, the EAT found that BHS had a genuine belief in Miss Burchell’s misconduct, and that this had been formed following a reasonable investigation (questions 1 and 3 of the test). And the EAT thought it illogical for the Industrial Tribunal to expect BHS to investigate further than it had, or to question whether BHS’s decision would have changed had it done so.

On question 2 of the test, the EAT noted that the various pieces of evidence, upon which BHS based their belief of misconduct, allowed for different interpretations. It would not have been sufficient to meet the criminal standard of proof for dishonesty, but the EAT was clear that this wasn’t the required standard to meet in this situation. The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to that of a criminal investigation. Taken together, the EAT accepted that the evidence was enough to form the basis for a reasonable belief of misconduct. Therefore, they held that question 2 of the test was satisfied and that the dismissal had been fair.


A lot has changed in the world in the 45 years since this case was decided. But the Burchell test remains just as applicable for employers today as it did then.

Now though, the emergence of electronic communication, social media, and mobile phones means there is more potential evidence for employers to consider than ever before.

Consequently, employees need to be acutely aware of their conduct not only when they are at work, but perhaps even more so when they are not; because inappropriate behaviour on a night out or one drunken text could easily lead to disciplinary action from your employer and/or dismissal by reason of misconduct.

If an employer believes their employee is guilty of misconduct then they must follow the correct procedures by gathering evidence, reviewing documentation, speaking to the employee, speaking to any potential witnesses, and overall, ensuring that they carry out a reasonable investigation into that potential misconduct.

Have you found yourself in this situation?

Whether you are an employer facing potential misconduct by one of your employees, or you believe that your employer has dismissed you unfairly, Truth Legal can help.

Get in touch with our expert employment lawyers to discuss your situation and obtain a clear idea of your rights.


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Catherine Reynolds
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