Members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses ‘which a reasonable employer might have adopted.’ The ET must answer the question without substituting themselves for the employer. Substitution happens when the members of the ET decide what they would have done if they had been the employer.
‘(1) the starting point should always be the words of [Article 130(3)] themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many (though not all) cases there is a ‘band of reasonable responses’ to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
Browne-Wilkinson P J
[1982] UKEAT 62 – 82 – 2907, [1983] ICR 17, [1982] IRLR 439
Bailii
England and Wales
Cited by:
Cited – John Lewis Plc v T L Coyne EAT 7-Dec-2000
An employee had been dismissed for making private telephone calls at work, against company policy. The dismissal had been based upon the general assessment that making such calls was dishonest.
Held: The employer’s appeal failed. The procedure . .
Cited – Venniri v Autodex Ltd EAT 13-Nov-2007
EAT Unfair dismissal: Procedural fairness/automatically unfair dismissal
The Tribunal erred in law in failing to address s98A(1) of the Employment Rights Act 1996. Section 98A(1) is at present part of the . .
Cited – Knight v Treherne Care and Consultancy Ltd EAT 15-Apr-2009
EAT UNFAIR DISMISSAL
The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] . .
Cited – Sarkar 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 . .
Cited – Tayside 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.
Employment
Leading Case
Updated: 01 November 2021; Ref: scu.248979