The band of reasonable responses




A tribunal is not allowed to substitute its own view as to whether a dismissal was reasonable for that of the employer. Instead, a far more restrictive approach is taken, which involves deciding whether the dismissal fell within the so-called band of reasonable responses of an employer of a similar size and resources (HSBC Bank v Madden [2000] IRLR 827). A dismissal will be fair if it falls within this band of reasonable responses, even if it is harsh. The adoption by tribunals of the “band of reasonable responses” test is one of the main weaknesses of unfair dismissal law.



This test applies not just to the dismissal decision, but also to the procedure used (Whitbread PLC v Hall [2001] IRLR 275). A flawed procedure can only make a dismissal unfair if no reasonable employer would have used it. The same test is also applied to pre-dismissal investigations (Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23 CA).



Nothing in the statutory language requires tribunal judges to limit their discretion by applying this “band of reasonable responses” test but even so, the test has become a well-established feature of unfair dismissal law. The “band of reasonable responses” test does not infringe the European Convention on Human Rights, even in a case where a dismissed employee was accused of dishonesty or fraud, making it very difficult to find a new job (Turner v East Midlands Trains [2012] EWCA Civ 1470). This is because the reasonableness of employers’ actions will be judged by looking at all the surrounding circumstances. The more serious the potential consequences for the individual, including for example, their future ability to continue practising their profession, the higher the standard of investigation and procedural fairness expected (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721).