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Issue 50 (September 2000)

Contents

All that's left is a band of reasonable responses
Equality contracted out
Sexuality discrimination
Discipline, grievance and the right to be accompanied
Preparing for action
No penalty for missed period

All that's left is a band of reasonable responses

Foley v Post Office
HSBC Bank Plc v Madden (Court of Appeal) 17 August 2000

Thompsons Labour and European Law Review has reported a series of cases over the last year relating to the range of reasonable responses test in unfair dismissal cases where employers give misconduct as the reason for dismissal. The issue is crucial as it determines the scope of the tribunal's ability to interfere in an employer's decision to dismiss and rule it to have been unfair; see LELR issues 45 (April 2000) and 41 (December 1999).

The GMB successfully challenged the range or band of reasonable responses test in the case of Haddon v Van Den Berg Foods in September 1999 and this was followed by Madden in January in 2000. This issue has been given an expedited hearing before the Court of Appeal who have comprehensively reversed the advances made in the Haddon and Madden cases. The Court of Appeal have unequivocally reinstated the previous orthodox position as expressed by another Court of Appeal case, Iceland Frozen Foods v Jones [1982] IRLR 439.

The outcome of the Appeal established the following points, although so far, we have only had the oral judgment of the Court of Appeal and not the formal transcript approved by the Court.

1 The range of reasonable responses test is reinstated. In other words the decision to dismiss will not be unfair if it is one which a reasonable employer could have taken in the circumstances even if the Tribunal would not have taken that decision themselves.

2 There are two elements to any unfair dismissal claim - firstly whether the employer can establish one of the five potentially fair reasons for dismissal and secondly whether dismissing an employee in response to that reason is just and equitable and fair. The employers are obliged to carry out a reasonable investigation in accordance with British Home Stores v Birchell. This remains binding authority and relates to both parts of an unfair dismissal claim - the reasonableness of the dismissal and not just the reason for dismissal.

3 A Tribunal is not allowed to substitute its view of what is reasonable for that of the employer.

4 An employer must still establish that it had, by the standpoint of a reasonable employer, reached reasonable grounds for belief in the guilt of the employee and they had carried out a reasonable investigation in to the circumstances alleged.

Unless and until this matter goes to the House of Lords or the legislation is amended (both of which is unlikely) the position reverts to that which existed before Haddon and Madden were originally decided. There is also the possibility of a challenge under the
Human Rights Act which comes into force in October.

For now, our reasonable response to the Court of Appeal's judgement is extreme disappointment.