UK: Reasonable Responses Returns

Last Updated: 17 January 2001

In deciding whether or not a dismissal is fair, the statutory test as set out in section 98(4) of the Employment Rights Act 1996 (ERA) is as follows:

‘... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer:

  1. 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
  2. shall be determined in accordance with equity and the substantial merits of the case.’

Bands

The concept of the ‘band of reasonable responses’ was first formulated by the Employment Appeal Tribunal (EAT) in the case of Iceland Frozen Foods v Jones (1982 IRLR 439). There it was suggested that the tribunal should follow a number of steps in order to determine the fairness or otherwise of a dismissal.

It was said that the starting point should be the words of the statute itself. The Employment Tribunal should then consider the reasonableness of the employer’s conduct and in doing so should not substitute its decision as to the right course to adopt for that of the employer. In many cases, there is a band of reasonable responses to the employee’s conduct and it is the function of the Employment Tribunal to determine whether in the particular circumstances of each case the decision to dismiss fell within this band. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.

Untying The Band

This view was followed and used until Morison J criticised the test saying it was unhelpful and ‘perverse’ in his judgement in Haddon v Van den Bergh Foods Ltd (1999 IRLR 672).

In this case, Mr H was dismissed after a reception at which he was presented with a good service award after completing 15 years with a clear disciplinary record with V. He was dismissed for failing to return to work after the ceremony in circumstances in which he had been supplied with alcohol at the reception. He was dismissed for disobedience. The Employment Tribunal found the dismissal fair. They considered that the request to return to work after the ceremony was not an unreasonable one. Further the employer’s disciplinary procedure stated that an employee could be dismissed without prior warning for an act of gross misconduct and that not carrying out proper and reasonable instructions was an example of such conduct. Therefore the dismissal was not outside the band of reasonable responses.

On appeal to the EAT, Mr H’s appeal was allowed. It stated that the range of reasonable responses test was unhelpful in that it led to tribunals applying what it thought amounted to a ‘perversity test’. This it was felt could have the consequence of leading to extreme reactions when tribunals came to consider the fairness of a decision. The tribunal should put itself in the employer’s shoes and ask itself what it would have done in the circumstances.

Commentators were uncomfortable with this approach. In particular, the EAT asserted that the tribunal had failed to consider the injustice to the employee when applying the statutory test. In making this point, the EAT apparently forgot that the possibility of an employee suffering injustice was said NOT to be a necessary ingredient in deciding the fairness of a dismissal by the House of Lords in Polkey (1987 IRLR 503). Further, the range of reasonable responses test goes hand in hand with the principle that the tribunal should not substitute its view for that of the employer. Because dismissal is the ultimate sanction, each employer may obviously have a different reaction to a situation; some employers may decide not to dismiss while others might decide otherwise. This would not render the decision to dismiss unreasonable and thus the application of the band of responses test had seemed quite a sensible tool to use.

Madden Or Haddon?

A few months later, in Midland Bank plc v Madden, (2000 IRLR 288 EAT) a lending officer who had worked for the bank since 1986 was dismissed because the bank after an internal investigation and disciplinary hearing concluded that there had been gross misconduct on his part. The unanimous decision of the tribunal was that Mr M had been unfairly dismissed and that the bank had carried out an insufficient investigation.

The bank then appealed to the EAT on three points. First, that the tribunal had substituted its own view for that of the employer. Secondly, that the tribunal had applied too high a standard to the investigatory process, and finally, that it had not correctly approached the question of whether the bank had carried out a reasonable investigation.

The EAT dismissed the bank’s appeal. It reviewed Haddon and said it was not open to the EAT to overturn consistent EAT and Court of Appeal precedents in this area. It reminded itself that the statutory wording of section 98(4) is the ultimate guidance. However, it was commented in this case that there was nothing to stop the range of reasonable responses test becoming a test of perversity, which could be too pro-employer, and the EAT commented that this point needed to be resolved by the Court of Appeal.

The EAT in Madden undermined the existing law on two other fundamental issues:

  • It held that the well-known rules on suspected misconduct dismissals in BHS v Burchell [1978] IRLR 379, EAT (belief in guilt; reasonable grounds; coming from reasonable investigation) - relied on countless times, but under fire from the Scottish EAT in Wilson v Ethicon Ltd [2000] IRLR 4, EAT - are in fact relevant to the question of whether the employer has established the reason for the dismissal (sections 98(1) and (2)), not to the question whether dismissal was fair (section 98(4)).
  • It commented on when a tribunal may substitute its own decision for that of the employer. It said that it can do so when considering the reason for dismissal. It also said that a tribunal can substitute its own view on reasonableness under section 98(4), even though arguably that is inconsistent with applying the range of reasonable responses test (which elsewhere in the judgement the EAT actually approved!).

Reason Restored

HSBC Bank plc (formerly Midland Bank plc) v Madden was heard by the Court of Appeal with another case - Foley v Post Office. The appeal judges decided to give the seal of approval to the band of reasonable responses test and in doing so dispel the present uncertainty about what law to apply. It said that tribunals were not to approach the issue of the reasonableness or unreasonableness of a dismissal by reference to their own judgement of what they would have done had they been the employer. Tribunals should continue to apply the law in section 98 of the ERA and use the band of reasonable responses test as expounded in Iceland.

Further, the three stage approach to the reason for and the reasonableness or otherwise of a dismissal for a reason relating to conduct as set out in Burchell remained binding on tribunals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.