The band of reasonable responses

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

The leading case confirming this is HSBC Bank v Madden [2000] IRLR 827. The “band of reasonable responses” test applies also to the disciplinary procedure used by the employer (Whitbread PLC v Hall [2001] IRLR 275) and to the disciplinary investigation (Sainsburys Supermarkets Limited v Hitt [2003] IRLR 23 CA).

The use by tribunals of the “band of reasonable responses” test means that a very harsh dismissal, or the use of an unsatisfactory procedure, can be fair provided any reasonable employer of the size and resources of the dismissing employer could have reached the same decision or used the same process.

In other words, a dismissed member will usually have an uphill struggle persuading a tribunal to overturn a dismissal decision, reinforcing the importance of putting the strongest possible case before the disciplinary panel at the internal hearing.