The band of reasonable responses

A tribunal is not allowed to substitute its own view for that of the employer as to whether a dismissal was reasonable. Instead, it must take a much more restrictive approach. This involves deciding whether the dismissal fell within what is known as the “band of reasonable responses” available to an employer of a similar size and resources (HSBC Bank v Madden [2000] IRLR 827). A decision will be fair if it lies inside this band of reasonable responses, even if it is very harsh. The adoption by tribunals of this band of reasonable responses test is one of the main weaknesses of unfair dismissal law.

This “band of reasonable responses” test applies not just to the dismissal decision, but also to the dismissal procedure (Whitbread PLC v Hall [2001] IRLR 275). In other words, a flawed procedure will only make a dismissal unfair if no reasonable employer would have used it. The same test is also applied to pre-dismissal investigations (Sainsburys Supermarkets Limited v Hitt [2003] IRLR 23 CA).

The “band of reasonable responses” test does not infringe the European Convention on Human Rights, even if a dismissal raises issues of dishonesty or fraud which will make it difficult for the dismissed employee to find a new job. This was established in Turner v East Midlands Trains [2012] EWCA Civ 1470.