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A recent appeal case shows that the range of reasonable
responses test really does have some teeth after all.
A dismissal for misconduct will be fair if the employer ticks
four boxes (and, of course, follows a fair procedure). The employer
must:
carry out a reasonable investigation
honestly believe the employee is guilty of the alleged
misconduct
have reasonable grounds for that belief
and
the dismissal must be within a range of reasonable responses to
the employee's misconduct, measured by the standards of a
hypothetical reasonable employer.
Facts
In Graham v Secretary of State for Work and Pensions, Graham had
worked for the DWP for 30 years, latterly as a manager in a
Jobcentre. Her record was exemplary. She helped a young man, Moss,
whose personal situation was very difficult and who was a friend of
a friend of her daughter's, to look for a job. It was alleged
that this help was given in breach of DWP rules. The investigating
manager decided that
Moss had become Graham's acquaintance, so she should not
have used her position to help him
she had breached security by taking him into the staff canteen
for a sandwich
she had left him unattended by her work computer for a short
time. She was dismissed summarily for gross misconduct.
ET decision
The employment tribunal found that Graham had not helped Moss
after she had become his "acquaintance". So, in fact, all
she had done wrong was to take Moss to the Jobcentre canteen and to
have left him sitting unattended at her computer for a short
period. The tribunal concluded that dismissal on these grounds was
outside the range of reasonable responses.
EAT Decision
The DWP appealed to the Employment Appeal Tribunal (EAT). The
EAT said it thought that, on the evidence, Graham had in fact
helped Moss after she had become his acquaintance. It held that the
tribunal had wrongly substituted its own view of the evidence for
that of the employer and that the dismissal "... plainly and
unarguably fell within the range of reasonable responses
...".
CA Decision
The Court of Appeal held that the employment tribunal had been
right first time and the EAT was wrong. There was evidence that the
investigating officer was unable to define what was meant by
"acquaintance" and had not made any clear finding that
Moss was Graham's acquaintance at the time that she helped him.
So the tribunal had been entitled to conclude that the DWP did not
have reasonable grounds for believing that Graham was guilty of
this allegation.
The Court of Appeal held that the "range of reasonable
responses" test does not mean that a decision to dismiss is
unreasonable only if it is shown to be perverse. It agreed with the
employment tribunal that to dismiss Graham summarily for gross
misconduct in respect of the two other allegations (taking Moss to
the staff canteen and leaving him unattended by her computer) was
outside the broad band of reasonable responses, looked at from the
objective point of view of the hypothetical reasonable
employer.
Comment
Although this case is not a landmark decision, it does show that
the "range of reasonable responses" test has some teeth
after all. The key practical lesson for employers is that any
findings of fact relied on to justify dismissal must be clearly
established and documented in order to bring the dismissal decision
within the required range.
This article was first published in People Management on 17
July 2012
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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