This article applies to England, Wales and Scotland.
In brief: In misconduct cases, tribunals assess whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996. The Burchell questions examine genuine belief, reasonable grounds and reasonable investigation.
Last updated: 29 July 2026
By Yerty | Based on legislation, appellate authority and the ACAS Code.
Where the Test Comes From
The framework comes from British Home Stores Ltd v Burchell [1978] IRLR 379. It operates within the single statutory test in section 98(4). It is guidance, not a separate statutory code.
The Burchell Questions
| Question | Focus |
|---|---|
| Did the employer genuinely believe the employee committed misconduct? | Actual belief |
| Were there reasonable grounds for that belief? | Available evidence |
| Had the employer carried out as much investigation as was reasonable? | Adequacy of process |
Guilt Is Not the Only Question
The tribunal does not simply rehear the disciplinary case. It reviews whether the employer acted reasonably. Evidence of innocence can still matter where it shows that the employer ignored obvious facts or reached a conclusion unsupported by the material.
The Range of Reasonable Responses
The tribunal must not substitute its preferred decision. It asks whether the investigation, findings and sanction fell within the range open to a reasonable employer.
A reasonable belief does not automatically make dismissal a reasonable penalty.
The ACAS Code
Failure to follow the ACAS Code does not automatically make a dismissal unfair. It may support a finding of unreasonableness and, where the statutory conditions apply, compensation may be adjusted by up to 25%.
Procedure and Compensation
Procedural failings may render a dismissal unfair when the process is assessed as a whole. They do not automatically do so.
A compensatory award may also be reduced under Polkey if a fair process could have produced dismissal at the same time or after a shorter period.
Frequently Asked Questions
Does a tribunal decide whether I actually committed misconduct?
Not as a fresh disciplinary tribunal. It reviews whether the employer acted reasonably.
Does a reasonable investigation automatically make dismissal fair?
No. The sanction must also fall within the range of reasonable responses.
Does failure to follow the ACAS Code automatically establish unfair dismissal?
No.
Sources
- Employment Rights Act 1996, section 98 — https://www.legislation.gov.uk/ukpga/1996/18/section/98
- ACAS Code — https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
- BAILII — https://www.bailii.org/