Gross Misconduct: Unfair Dismissal Guide (Burchell and s98(4) ERA 1996

Your practical roadmap. UDO explains the Burchell test and the s.98(4) reasonableness test in plain English, then give scripts and checklists for hearings and appeals. The Acas Code guides process; breaches don’t secure a win by themselves but can increase compensation if you succeed.

Unfair dismissal for gross misconduct roadmap

This step-by-step guide is for gross misconduct unfair dismissals, wheter you have confessed to it or not does not matter, you can still win the case if your employer fail to pass Burchell and or s98(4) ERA 1996 tests.

Burchell Test

The Burchell test comes from British Home Stores Ltd v Burchell (EAT, 1978).

It’s the three-question check tribunals use in misconduct cases - did your employer

(1) hold a genuine belief you did it,

(2) on reasonable grounds, after

(3) a reasonable investigation.

When it may not be your main argument
Use Burchell where you dispute the allegation, do not agree you have done what is alleged — for example:

✓ the facts your employer relied on are wrong or incomplete,
✓ what is alleged isn’t gross misconduct on your employer’s own rules, or
✓ the investigation was inadequate (missed witnesses, missing evidence, one-sided enquiries).

When Burchell should not be your focus
If you accept to have committed the misconduct, the fight moves to section 98(4) ERA 1996 — we question whether dismissal (rather than a warning, training, mediation, redeployment) was a reasonable response overall and the procedure was fair.

Burchell Test

ACAS Early Conciliation stops the clock. If you’ve calculated your EDT, you must start ACAS within three months minus one day (it’s compulsory for unfair dismissal).

Under s.207B ERA 1996:

Day A = the day you contact ACAS to start Early Conciliation.
Day B = the day you receive the ACAS certificate.

Rule 1 (pause): The period from the day after Day A (ACAS told) up to Day B (ACAS certificate) is not counted towards your time limit. You get out ACAS and resume notmal time limit left.
Rule 2 (one-month tail): If your original deadline expires at any time from Day A up to one month after Day B, your deadline becomes the end of that one-month-after-Day-B period (not a new three months and not extra day spent in ACAS).

So, start ACAS in time, then calculate using Day A / Day B. Still confued ? Check how ACAS stop-the-clock works with easy examples.