Reasonable responses in an unfair dismissal claim

A recent case in the Employment Appeal Tribunal has elaborated and provided further guidance on how employers may act within the “range of reasonable responses” when considering dismissal for gross misconduct.

When employers are considering a disciplinary outcome for potential misconduct, Tribunals will consider whether the outcome that they reach was within the range of “reasonable responses” that the employer could have reached.

In the recent case of Vaultex v Bialas, which involved an employee who had been dismissed for gross misconduct for posting a racist joke/remark on the Employer’s intranet website, this was held by the Employment Appeal Tribunal to be a fair dismissal.

It was originally held by the Employment Tribunal (before the decision was appealed) that the employer’s response to dismiss the employee was outside of the ‘band’ of reasonable responses, taking into account the employee’s clean behaviour record as a good and valuable employee and the remorse shown for the act.

The Appeal Tribunal however took the view that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. They therefore substituted the previous judgement of the tribunal to find that the employer had made a fair dismissal.

This case in particular provides helpful guidance on the application of the band of reasonable responses test which an employer can rely on and undertake.

There are a range of responses available to an employer ranging from warnings to dismissals, however in this case the employee was dismissed following a disciplinary hearing. This was deemed to be fair despite the fact that the employee had a clean behaviour record, had provided a period of long service with the Employer and had shown remorse and willingness to take training to rectify the issue. These are still factors that an employer should take into account when considering whether it is fair to dismiss, however in this situation the decision to dismiss remained a reasonable response open to the employer.

This should not be treated as giving employers a “free reign” to dismiss but should provide guidance to employers as to how the range of responses might be considered by a Tribunal where dismissal is being considered.

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