The band of reasonable responses


When deciding whether a dismissal is fair, a tribunal is not allowed to substitute its view for that of the employer. In other words it is not allowed to decide whether, had it been in the employer’s shoes, it would have dismissed the employee (London Ambulance Service NHS Trust v Small [2009] IRLR 583). Instead, tribunals must decide whether the employer’s decision fell within a “band of reasonable responses”.


This “band of reasonable responses” test enables a very harsh dismissal, or the use of an unsatisfactory procedure, to be fair as long as any reasonable employer of the size and resources of the dismissing employer could have acted in the same way. In practical terms, it means a dismissed member will usually have an uphill struggle persuading a tribunal to overturn a dismissal decision. This reinforces the importance of putting the strongest possible case at the internal hearing.


The “band of reasonable responses” test applies to every stage of the disciplinary process, including the disciplinary procedure (Whitbread PLC v Hall [2001] IRLR 275), the investigation (Sainsburys Supermarkets Limited v Hitt [2003] IRLR 23 CA) and the sanction. The test does not contravene the European Convention on Human Rights, even if the employer’s decision involves allegations such as theft or fraud that could have a lifelong impact on the employee’s ability to find work (Turner v East Midlands Trains [2012] EWCA Civ 1470). 


However, the more serious the long-term implications of any disciplinary, the higher the standard of investigation and procedural fairness the employer must meet (Salford Royal NHS Foundation Hospital Trust v Roldan [2010] IRLR 721). This is an important principle of unfair dismissal law, useful for reps defending serious cases of alleged misconduct.