If I am representing an employee in an unfair dismissal case I will nearly always argue that the sanction of dismissal was excessive and disproportionate.
That a reasonable employer would not have gone that far, and a lesser sanction would have been more appropriate.
The employer, or his representative will claim that the action was reasonable.
What is reasonable? What is excessive? Disproportionate?
Who decides? The employer? Or the decision making body such as WRC or Court?
Courts and decision making bodies in unfair dismissal cases, when assessing whether an employer’s response to penalising the employee in an employment law dispute, have long recognised that they will not substitute their judgment for that of the employer.
This means that once the employer’s sanction of the employee falls within a range of reasonable responses, the WRC or Court will not take on the role of employer in deciding what is appropriate in the circumstances. Instead, it will decide whether the employer’s response falls within a range of reasonableness in the circumstances.
What’s appropriate and reasonable in the circumstances will also vary widely, and what may be an appropriate penalty in one workplace may be disproportionate and excessive in another.
Let’s take a look at the principle of the range of reasonable responses, and how the decision making bodies come to an assessment of the employer’s decision.
The Employment Appeals Tribunal (EAT) have held,
“………the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”. (McGee v Peamount Hospital)
The decision making body will look at the circumstances of each case and decide whether the response of the employer falls within the band of reasonable responses. In doing so, the WRC or Court will look at things like
- The gravity of the conduct leading to the dismissal
- The size of the employer’s workforce and resources
- The employee’s background and length of service
- Any other relevant facts.
It is important to note that what may be reasonable for one employer may not be held to be reasonable in respect of another employer. This is because a large employer will have far more resources than a small outfit and will be able, perhaps, to consider a sanction short of dismissal, such as redeployment or other alternatives, which will not be open to the small guy.
In the UK Lord Denning, MR, stated in British Leyland UK limited v Swift (1981),
“the correct test is..was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”.
Unfair dismissal cases can be expensive for employers, and there is many factors which will be considered in deciding whether the dismissal was unfair or not. Two significant factors are the presence or absence of a fair procedure in deciding to terminate, and whether the decision to dismiss falls within the range of reasonable responses.