The band of reasonable responses to gross misconduct

Just because one employer decides a final warning is sufficient does not mean another cannot fairly dismiss an individual for the same reason, says Andrew Crudge

Consider this scenario: an employee is facing disciplinary action for something that may potentially be serious enough to amount to gross misconduct. The employer must decide whether a dismissal is justified, or whether a warning would be more appropriate. 

In many cases, this is easier said than done. One reasonable employer may take the view that the actions amount to gross misconduct, resulting in dismissal. Whereas another may decide that the employee is guilty of mere misconduct (which does not justify a dismissal). Simply put, there is a band of reasonable responses for every situation. We are all different. Therefore, it is unrealistic to expect one set of circumstances to invoke the same response in every human. Two employers both acting reasonably, for example, may decide on different sanctions when faced with the same situation – one dismissing, and the other issuing a warning.

Tribunals have long acknowledged that when determining the fairness of a dismissal, they must take this band of reasonable responses into account. This principle was first established in the case of Iceland Frozen Foods v Jones (1983) where an employee claimed he was unfairly dismissed for failing to lock a door and for taking part in a ‘go slow’ while on security duties. 

In this case, the Employment Appeal Tribunal (EAT) held that, when judging the reasonableness of an employer’s actions, the tribunal should not substitute its own decision for the course of action the employer should have taken. Instead, the tribunal’s job is to determine whether the decision to dismiss falls within the band of reasonable responses to the employee’s conduct.

However, it is not uncommon for tribunals to get caught out on this point. If a tribunal finds a dismissal to be unfair because, in its view, dismissal was not an appropriate outcome, the employer may argue that the tribunal has substituted its own decision for that of the employer. The recent case of Northbay Pelagic v Anderson provides the prime example of this. An employee (who was also a director) was dismissed for gross misconduct. One of the grounds for dismissal was that he had placed a hidden camera in his workplace to establish if anyone was accessing his work computer.

The employment tribunal made a finding of unfair dismissal against the employer – the respondent. One of the respondent’s grounds of appeal was that the tribunal had substituted its view of the decision to dismiss for the course of action the respondent should have taken. The EAT rejected the respondent’s appeal on this point and held that the tribunal had correctly concluded that the respondent’s decision to dismiss fell outside the band of reasonable responses.

However, this case does highlight the ambiguity of borderline situations. Just because some reasonable employers may decide that dismissal is not justified, does not mean that another employer cannot fairly dismiss an employee based on the same set of circumstances, provided it is a reasonable response to the employee’s conduct. Furthermore, no dismissal should be found to be unfair simply because the employment judge considers that dismissal was, in their view, not justified. 

Often, HR may be asked to step in where a disciplinary panel disagrees or is unsure whether a dismissal is justified based on the relevant facts. 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.

Andrew Crudge is an employment solicitor at Trethowans