Does an employer have to prove misconduct?

Aug 16, 2021 | Disputes

If you are conducting a disciplinary procedure due to allegations of misconduct on the part of an employee, and particularly in a small business, one question that may arise is whether you can prove the misconduct occurred, or you can prove the employee in question was the guilty party. But is this actually necessary?

Burden of proof

Unlike in criminal proceedings, it is not necessary in a disciplinary context to prove your case “beyond reasonable doubt”. The burden of proof is therefore much lower, and if you cannot comprehensively prove something occurred, that does not mean you cannot impose a sanction.

The ideal situation

The ideal situation in any misconduct case would be having physical proof of the matter in question as it makes the process of proving guilt easier however, this may not always be possible.   You can still continue an investigation and the subsequent disciplinary proceedings, on the basis of probability, that the employee did commit the misconduct.

What you can do without proof

In cases where there is no absolute proof, the criteria in the Burchell test need to be met.  This test came from a high-profile case in the 1970’s and is named after the claimant in the case.  The following three measures need to be met and adhered to in order for a disciplinary sanction to be fair and reasonable:

1. Genuine belief of guilt

For a sanction to be fair, the employer must genuinely believe that the employee committed the offence of misconduct in question.

2. Reasonable grounds supporting belief

As well as genuinely believing the employee committed the misconduct, there must be reasonable grounds to support this belief, ie it is not a feeling or an assumption. This can come down to the balance of probability – if the evidence shows that, on the balance of probability, the employee was guilty, then there will be reasonable grounds for the belief.

3. Comprehensive investigation

A reasonable and adequate investigation must have been carried out into the allegations. An investigation may include interviews with witnesses, reviewing CCTV or other monitoring, and also could involve interviewing the employee in question as a fact-finding exercise rather than a disciplinary hearing.

If a tribunal feels the investigation you carried out was inadequate, for example key witnesses were not interviewed, or evidence that would have been relevant was not looked into, you may fail on this aspect of the test.


Whilst it is not necessary to meet the same standard of proof as in a criminal setting, it is obviously important to make sure decisions are as robustly supported as possible. If the worst-case scenario did happen, and you were taken to an employment tribunal by an employee who felt their misconduct sanction was unfounded, the employment tribunal would assess the fairness and consistency of the process you conducted and would look at the three aspects of the Burchell test described above, so it’s important to follow due process as dictated in your disciplinary policy and ensure decisions taken are based on as much evidence as possible.

Having a professional HR consultant to advise on cases of misconduct will aid you in determining the best outcome for your business therefore do get in touch for support in this area.