A question for you – was a tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on their employer’s intranet fell outside the band of reasonable responses?
It was held by the Employment Appeal Tribunal (EAT) in the recent case of Vaultex v Bialas, that they were not.
In this case, the Claimant had posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished employment record and had apologised for the way he acted. However, the Respondent decided to dismiss the Claimant for gross misconduct. Somewhat surprisingly, it was held by the tribunal that the Claimant had been unfairly dismissed. The tribunal concluded that, having considered the Claimant’s previous record and the fact he had apologised for his actions, any sanction higher than a final written warning was unfair, and therefore fell outside the band of reasonable responses that a reasonable employer could have reached.
However, on appeal by the Respondent, the EAT held that the tribunal had substituted its own view for that of the Respondent. The EAT concluded 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’. The EAT therefore substituted a finding of fair dismissal.
This case provides a key insight into the band of reasonable responses test to be adopted by employers and how this applies in practice. For the avoidance of doubt, judicial guidance regarding the meaning and application of s.98(4) of the Employment Rights Act 1996 in the context of misconduct dismissals is set out below:
- In assessing the
reasonableness of the decision to dismiss, the tribunal must consider the
decision against the objective standards of the hypothetical reasonable
employer, rather than by reference to the ET’s own subjective views. It
must consider whether the employer has acted within a “band or range of
reasonable responses” to the misconduct found of the employee. - The tribunal must not
substitute its own view as to whether they think that the dismissal was
fair for that of the employer.
Ultimately, it is important that employers ensure that any disciplinary sanction is proportionate to the alleged misconduct and apply a lesser sanction, such as a written warning, where appropriate. If you find yourself in this situation, ask yourself: could a reasonable employer class the employee’s actions as gross misconduct and dismiss? If the answer to this question is yes, then there is a good chance that a dismissal will fall within the reasonable band of responses and, consequently, would be deemed fair. Of course, this will all depend on the individual circumstances of the case at hand.
Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited