Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden: CA 31 Jul 2000

When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of reasonable responses’ of a reasonable employer to the situation. Earlier conflicting decisions were disapproved. ‘The interpretation placed by the tribunals and courts, including this court, on the provisions of the 1978 Act in the cases of Iceland Foods and Burchell has not led Parliament to amend the relevant provisions, even though Parliament has from time to time made other amendments to the law of unfair dismissal, since those authoritative rulings on interpretation were first made. So those rulings, which have been followed almost every day in almost every Employment Tribunal and on appeals for nearly 20 years, remain binding.’
The Employment Tribunal has to ask itself: (i) did the employer genuinely believe that the employee was guilty of the misconduct alleged, (ii) did the employer have reasonable ground for that belief, reached after a reasonable investigation and (iii) was the sanction of dismissal a reasonable sanction in the light of that misconduct?

Mummery, Nourse VP, Rix LJJ
Times 17-Aug-2000, Gazette 31-Aug-2000, [2000] IRLR 827, [2000] EWCA Civ 3030, [2000] ICR 1283, [2001] 1 All ER 550
Employment Rights Act 1996 98
England and Wales
Appeal fromFoley v The United Kingdom ECHR 22-Oct-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
See AlsoFoley v Post Office EAT 1-Oct-1998
. .
CitedHaddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
CitedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
See AlsoFoley v Post Office EAT 1-Mar-1999
. .

Cited by:
CitedJ Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
DoubtedPay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Appeal fromFoley v The United Kingdom ECHR 22-Oct-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
CitedX v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
CitedA v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
CitedHarding v Hampshire County Council EAT 10-May-2005
EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
CitedBournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
CitedStrouthos v London Underground Ltd CA 18-Mar-2004
The claimant had been dismissed after being accused of taking a staff car to France and having it impounded for suspected importation of cigarettes and alcohol above personal use limits.
Held: ‘It is a basic proposition, whether in criminal or . .
CitedSarkar v West London Mental Health NHS Trust CA 19-Mar-2010
The doctor had been summarily dismissed for gross misconduct. He now appealed against the EAT’s reversal of the finding of unfair dismissal. The original procedure adopted was appropriate to a lesser level of misconduct, but the employer had later . .
CitedTurner v East Midlands Trains Ltd CA 16-Nov-2012
The employee, a train ticket conductor, was accused without direct evidence of manipulating her machine to produce false tickets which she was then said to have sold.
Held: Elias LJ said that the Tribunal: ‘has to ask whether the employer . .
CitedShrestha v Genesis Housing Association Ltd CA 18-Feb-2015
The appellant had been dismissed for alleged dishonest expenses claims. He was said to have claimed for more miles travelled than would be calculated by AA or RAC services. He said that ony two such allegations were put to him for explanation, but . .
CitedTayside Public Transportcompany Ltd (T/A Travel Dundee) v Reilly SCS 30-May-2012
The respondent bus driver had claimed unfair dismissal following an accident. The Employment Tribunal struck out his case as having no reasonable prospect of success, but the case had been re-instated by the EAT.
Held: the power given in the . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.80622