Unfair Dismissal – Range of Reasonable Responses – An Introduction
The following is taken from the judgment in Vaultex v Bialas [2024] EAT 19 where an appeal was upheld that the tribunal had wrongly substituted its own view of the appropriate for the employer’s, and perverse in deciding that dismissal was not within the reasonable range of responses. The EAT decided that the only decision the tribunal could properly have reached was that dismissal was not unfair.
- Section 98 Employment Rights Act 1996 provides in relevant part as follows:
98 General.
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it—
…
(b) relates to the conduct of the employee,
…
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) —
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case. - When considering the reasonableness of the sanction of dismissal for the purposes of section 98(4), the tribunal should apply a band of reasonable responses test. The test was formulated by Phillips J in the EAT in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251 and explained in the speech of Lord Denning MR in the Court of Appeal a few years later in British Leyland UK Ltd v Swift [1981] IRLR 91:
“The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: ‘…a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate.’ I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable.
If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.”
The tribunal should not find the dismissal to be unfair on the basis that it would have been a reasonable decision to impose a lesser sanction for the dismissal; that this is what some employers would have done; or that this is what the tribunal itself would have done.
If the tribunal concludes that the dismissal was unfair because the tribunal would not itself have dismissed, then it commits the so-called substitution error of substituting its own view of the appropriate sanction for that of the employer, rather than taking a band of reasonable responses approach.
