Employment Tribunal shouldn’t substitute own view for that of the employer

by Redmans Solicitors on December 11, 2012

  • SumoMe

In this post we’re going to take a look at the “range of reasonable responses” test in unfair dismissal claims and examine (in particular) what this test is, how it should be applied by the Employment Tribunal in unfair dismissal cases, and when a decision of the Tribunal may be open to challenge on this ground. We’ll therefore examine the following points:

  1. What is an unfair dismissal claim?
  2. The “range of reasonable responses” test
  3. How the Employment Tribunal should deal with the issue of reasonableness

What is an unfair dismissal claim?

Employees have the right, under s.94 of the Employment Rights Act 1996, to not be unfairly dismissed from their employment. If they believe that they have been unfairly dismissed they can make a claim for unfair dismissal to the Employment Tribunal. In determining whether a dismissal has been unfair or not the Employment Tribunal must have regard to two factors:

  1. The procedural fairness of the dismissal
  2. The substantive fairness of the dismissal

The procedural fairness of the dismissal will depend upon what procedures the employer took in dismissing the employee – whether, for example, they had undertaken an investigation into the allegations against the employee, undertaken a disciplinary hearing, and whether (among other things) the persons supervising the processes were sufficiently impartial.

The substantive fairness of the dismissal will depend upon three factors: whether the employer undertook a reasonably thorough investigation into the allegations made against the employee, whether the employer had an honest belief in the employee’s guilt on the strength of those investigations, and whether the employer had a genuine belief in the employee’s guilt on the strength of those investigations. If the employer has a reasonably-supported genuine and honest belief that the employee should be dismissed as a result of the allegations then they will generally be found to have made a decision which falls within the “range of reasonable responses” test.

The “range of reasonable responses” test

As above, this test is crucial in determining whether a fair dismissal has occurred or not (and also has implications for the amount of the remedy to be awarded). Although the test is relatively easy to understand it may be worth obtaining employment law advice from a specialist solicitor on this point.

How the Employment Tribunal should deal with the issue of reasonableness

The Employment Tribunal should not substitute its own view on issues of reasonableness for those of the employer. The general test is whether the employer acted reasonably, not whether the Tribunal would have come to the same decision – if the Tribunal finds that the employer acted as a reasonable employer could have acted then the dismissal will have been fair. The Tribunal should show in its decision that this test has been properly applied.

If an employee bring a claim of unfair dismissal or an employer defending a claim for unfair dismissal believes that the Employment Tribunal has made an incorrect decision relating to the “range of reasonable responses” test then they may wish to consider making an appeal to the Employment Appeal Tribunal.

Redmans Solicitors are employment law solicitors based in London whose unfair dismissal solicitors represent clients in the Employment Tribunal regularly.

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