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, it must take a far more restrictive approach which involves deciding whether the dismissal fell within the “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 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).


Nothing in the statutory language requires tribunal judges to limit their discretion by applying the “band of reasonable responses” test. Even so the test is now 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 the 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).