The Range of Reasonable Responses or a Stab in the Dark?

Dismissal is always a sensitive subject; not only due to the inevitable implications for an employee, but the complex and somewhat vague criteria that the employer must adhere to before terminating a contract.

Employment tribunals are to consider a dismissal as unfair if it fails to “fall within the range of reasonable responses”. In addition to being highly subjective in its very nature, the law throws an additional curve ball by expressly forbidding the judge from considering whether they personally would have dismissed the employee in the same circumstances; alternatively suggesting the tribunal ‘see through the eyes of the employer’ and adding a second subjective and rather unusual benchmark for judgment.

Issues relating to such an abstract test arose in the recent case of Rooney v Dundee City Council. Rooney had breached instructions given to her by her employers regarding cash handling; whilst this was done without intent or malice. She was given a final written warning and decided to appeal, however the appeal was never heard. Around a year later, Rooney made a similar mistake and was dismissed, it was accepted by Dundee that the second breach would not have led to dismissal had it not have been for the first instance which was being appealed. This raised an important issue for the tribunal to consider: was Rooney’s dismissal reasonable when reliant upon a previous matter?

The tribunal ultimately sided with Dundee in saying that the dismissal should not be deemed inappropriate based chiefly upon the existence of an unresolved issue. However, it did go on to say that the issue in question still needs be considered, only to be dismissed in its entirety if: issued in bad faith, without prima facie grounds for doing so or should the tribunal consider it “manifestly appropriate”. It may be suggested that the weight of the appeal itself would have influenced this particular decision, as it was discussed whether the appeal would have been successful or not. The tribunal was unsurprisingly vague in its decision and did not commit to an answer either way, commenting that as the breach itself was admitted and the decision would have been weighted on Rooney’s lack of intent and thus it could have gone either way. 

It is submitted there is just too much leeway for judgment in cases like this, paved by extremely wide terminology and leaves tribunal decisions wide open to criticism. In this particular case, the judge agreed that the dismissal was ‘harsh’- many may struggle to see the difference between this and ‘unreasonable’. A great deal of guesswork is also placed in the hands of the tribunal in that it is forced to consider the merits of a theoretical appeal and partially base a ‘just’ decision upon a non-existent outcome.

It seems as if ultimately the notoriously nebulous area of law, which is employment law, has muddied the waters yet again. It is well known that employment law is hardly a science, and it is acknowledged that reasonable assumptions are always made based on an incomplete collection of facts; a detective will arrive at a scene and use limited evidence to piece together the event. However such wide scope of subjectivity and possible small samples of evidence are bracketed with more of a philosophy and it seems a bridge too far for this commentator.

The consequences emanating from this area of law are not just suffered by employees; in a climate where employers are keen and in need of cutting down their task force, previously accepted bad conduct may become an attractive reason of dismissal, in this case an employer is faced with the hard task of determining where the boundary lies between a reasonable and unreasonable decision and must complete this task in the absence of an objective test or sufficiently comprehensive guidelines.

The writer is a lawyer based in London, with a keen interest in Company, Employment and Immigration law. Previously, he has completed two Masters in Law at the University of Sussex and University College London.  He is currently pursuing his third postgraduate legal qualification, undergoing training at BPP Law School in London on the Bar Professional Training Course and can be reached at: jay@londonlawtutor.com

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