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Range of Reasonable Responses & Unfair Dismissal

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  • Range of Reasonable Responses & Unfair Dismissal

    I came across this article while researching the legal position & definition of an employer's 'reasonable response' when deciding whether a dismissal is 'fair' or not.

    A bit of an 'eye-opener', to say the least!


    http://www.newlawjournal.co.uk/nlj/comment/reply/7402

    Adopting the right course


    Date: 10 June 2011
    Authors: John McMullen
    Issue: Vol 161, Issue 7469
    Categories: Features, Employment

    John McMullen reflects on what’s reasonable in unfair dismissal cases

    It has long been settled law that when deciding whether a dismissal is fair or unfair, an employment tribunal should consider the reasonableness of the employer’s conduct and not whether it considers the dismissal to be fair.
    The tribunal must not substitute its own view as to what is the right course to adopt for that of the employer. In many, although not all, cases there is a band of reasonable responses to the employee’s conduct or other situation facing the employer within which one employer might take one view and another, quite reasonably, another. If a dismissal falls within the band it is fair. If it falls outside the band it is unfair.
    Iceland Frozen Foods v Jones
    This canon was laid down by the seminal EAT case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 (per Browne-Wilkinson P, applying dicta of Lord Denning MR in British Leyland (UK) Ltd v Swift [1981] IRLR 91, CA).
    Some 20 years ago Professor Hugh Collins subjected this rule to a searing attack in his thoughtful monograph, Justice in Dismissal (OUP, 1992), characterising it as legitimating harsh managerial decisions which, nonetheless, could be deemed to be fair. For: “Only when the employer’s decision steps outside this charmed and manipulable circle will an [Employment] Tribunal regard the dismissal as unreasonable and unfair” [p 8].
    Despite an idiosyncratic attempt to overrule the doctrine by Morison P in Haddon v Van den Bergh Foods Ltd [1999] IRLR 672 (a case so harsh on its facts that, as the authors of Smith & Wood’s Employment Law (10th Edition, OUP, 2010) point out [p 460], it could, instead, have been categorised as involving a management decision falling outside the band of reasonable responses) the rule has survived. Following Haddon it received the ringing endorsement of the Court of Appeal in Foley v Post Office [2002] IRLR 827.
    However, the rule essentially requires the employment tribunal to distance itself from a view on whether it would have made the decision before it and to consider whether, though harsh, the decision is so severe as to fall outside the band. It is not surprising therefore that, even now, tribunals still get it wrong. A cluster of recent Employment Appeal Tribunal (EAT) decisions concerned employers’ appeals against tribunal decisions on the basis that the tribunal had substituted its own view for that of the employer out of sympathy for the employee.
    Quadrant Catering

    In Quadrant Catering Limited v Smith (EAT/0362/10) the employee was dismissed following an incident where she had sworn at her line manager and refused to carry out a reasonable instruction. The tribunal found that although a well known expletive was used, this may have been said in frustration. It found the dismissal unfair, stating that, as a rule, the dismissal should be a last rather than a first resort. The EAT held that the tribunal had fallen foul of the Iceland rule and substituted its own view for that of the employer.

    University of Warwick

    In University of Warwick v Gray (EAT/0508/09) the claimant was a lifeguard at a sports centre already under a warning. He entered the sports centre with three other colleagues without permission. His three colleagues were warned but he was dismissed. The employer concluded his case was different. He was under a warning and he had been aggressive. However, the employment tribunal felt there were shortcomings in the investigation. But the Iceland rule also applies to the way in which an employer carries out an investigation. In Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 3 the Court of Appeal stated that the band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss. Again, the employment tribunal had fallen into error by substituting its own view of the reasonableness of the investigation.
    Look Ahead Housing

    In Look Ahead Housing & Care Limited v Rudder (EAT/0163/10) the employee was dismissed for making allegedly discriminatory remarks within earshot of a client. The employer had a zero tolerance policy with regard to such conduct. Although the tribunal made reference to the band of reasonable responses test it concluded that although the dismissal might have been reasonable it was unreasonable because of the absence of consideration of an alternative sanction. Again the employment tribunal had lost sight of its function, namely to test the reasonableness of the dismissal under the Iceland rule.
    Semple Fraser

    Finally, tribunals are sometimes tempted to challenge the way employees have been selected for redundancy, in particular the way in which employers have assessed employees against criteria for selection. In Semple Fraser LLP v Daly (EATS/0045/09; discussed and distinguished in DLA Piper UK Management Services Ltd v Codyre (EAT/0323/10)) the EAT criticised the employment tribunal for, in effect, re-marking the scores of two employees at risk of redundancy and, thereby, finding the employee selected for redundancy had been dismissed unfairly. But this was the wrong way to approach it. Even if different scores could have been reached by another employer that did not demonstrate that this employer had acted unreasonably. The band of reasonable responses test applied and only if the employer had acted outside the band of reasonable responses could the dismissal be unfair.
    Bowater & the limits of the band

    That is not to say that harsh decisions cannot always be challenged. We suggest it turns on the way it is done. An employment tribunal clearly cannot revisit the employer’s decision and substitute its own. But that does allow for some decisions to be regarded as beyond the band of reasonable responses (as we suggest might have been the case in Haddon). A recent illustration is Bowater v Northwest London Hospitals NHS Trust [2011] IRLR 331. Bowater was a senior staff nurse employed by the trust. She was engaged in assisting to restrain and pacify a patient undergoing an epileptic fit. In this she was helping a colleague to administer an injection to the patient’s buttocks. In the course of the restraint she straddled the patient, thus enabling the procedure to be completed. While straddling the patient she quipped: “It’s been a few months since I have been in this position with a man underneath me.” Although the patient made no complaint (he was too ill to be aware) the trust disciplined her for an unacceptable method of restraint and inappropriate remarks. After a hearing she was dismissed for gross misconduct.
    The employment tribunal (in a majority decision) regarded the management decision as falling outside the band of reasonable responses. The trust had no settled restraint policy and the tribunal regarded the comment to have been made at the end of a very stressful experience working on the front line of a crisis situation. At worst it was lewd, the tribunal majority considered, but a large majority of the population would consider it “humorous”. The comment was not directed at the patient and no member of the public was present.
    This case has some significance in the debate on the “band”. Arguably it falls on the cusp (indeed the minority member’s view was summarised thus, exactly in terms of the rigour of the Iceland test: “Although the decision to dismiss the claimant could be considered harsh, it could not be considered to be outside the range of reasonable responses available to a reasonable employer in the circumstances”). The trust’s case was therefore that this was essentially a professional issue and an employer (even if not all employers might come to the same conclusion) would be entitled fairly to dismiss.
    The EAT agreed. It acknowledged that it would be unfair to dismiss for the manner of restraint when no procedure had been published. But as far as the allegedly lewd comment was concerned, despite the tribunal’s assertion of the band of reasonable responses test, had it not, for example, in expressing a view on what a majority of the public might have thought, in effect substituted its own view for that of the employer (as in the EAT cases discussed above)? The employment tribunal’s decision was overturned on this reasoning.
    On appeal, the Court of Appeal considered the EAT had taken too critical an approach. The employment tribunal had applied the correct test. Moreover it had carefully addressed the primary facts and was entitled, as it did, to consider the context within which the remark had been made. Turning the tables, the court (Laws, Longmore and Stanley Burnton LJJ) opined that the EAT should not easily interfere with a tribunal’s finding of fact. Thus, per Longmore LJ: “It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of perversity, substitute its own view for that of the ET” [para 19].
    In other words, in this case, when the tribunal said it was applying the band of reasonable responses test and considered the employer’s action outside the band, it meant what it said. In the absence of evidence to the contrary it was not for the appeal tribunal to interfere with this.
    Summary

    It remains to be seen what impact this decision will have on the scope of managerial discretion in dismissal. Perhaps the most telling dictum is that of Longmore LJ that: “…the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer” (at para 18; emphasis added). But at the very least it defines more clearly the scope for supervision of an employer’s behaviour, the role of the employment tribunal and, as Collins (op cit, p 40) puts it, the principles for the settling of the boundaries for judicial intervention.
    Dr John McMullen is director of employment law at Wrigleys Solicitors LLP & visiting professor of law at Durham University.
    CAVEAT LECTOR

    This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb


    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.


    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick
    Tags: None

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