Was the dismissal reasonable in all the circumstances?

Establishing a “fair reason” is only the first step to a fair dismissal. The employer’s next step is to show that the dismissal was reasonable in all the circumstances. The tribunal must consider all relevant facts to decide whether the employer acted fairly in dismissing the employee for that reason, taking into account, in particular, the employer’s size and administrative resources (section 98(4) ERA 96).

A tribunal is not allowed to substitute its own view for that of the employer as to whether a dismissal was reasonable. Instead, the tribunal 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 falls inside the band of reasonable responses, even if it 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 itself, 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.

A dismissing officer will not be assumed to have information relevant to the dismissal where that information is known only to other members of staff, unless it should have been uncovered in a reasonable investigation (Orr v Milton Keynes Council [2011] EWCA Civ 62). This underlines the importance of good preparation and of making sure all relevant facts are put before the decision-maker at the hearing.

In deciding the reasonableness of a dismissal, tribunals must take into account all relevant surrounding facts. These can include, for example, an employee’s disciplinary record and length of service (Strouthos v London Underground [2004] IRLR 636) and other mitigating factors such as any apology.