There are several different elements which make up the claim of unfair dismissal where an employee has been dismissed for misconduct:

  • The employee must be eligible: they must be an employee and must have over 2 year’s continuity of service.
  • The employer must be able to identify a potentially fair reason to dismiss. Conduct is one of the five potentially fair reasons. 
  • The employer must have acted fairly in dismissing for that reason. Where the reason for dismissal is conduct, the tribunal will look at the test from BHS v Burchell: did the employer hold a reasonable belief, following a reasonable investigation, that the employee was guilty of misconduct.
  • The employer must also show that their decision to dismiss did not fall outside the ‘band of reasonable responses’ that a reasonable employer might have when faced with the same situation.

In the recent case of Vaultex v Bialas, the Employment Tribunal looked at the band of reasonable responses, confirming that even if another outcome might also have been fair, as long as the employer’s actions did not fall outside of the range of reasonable responses, dismissal will not be unfair.  

In this case, the Claimant posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished service record and apologised for his actions. The Respondent dismissed him for gross misconduct.

The tribunal held that the Claimant had been unfairly dismissed. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed. The EAT held that the tribunal had wrongly substituted its own view. The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. It substituted a finding of fair dismissal.

This case is a reminder that there may be several ‘right answers’ in disciplinary cases. Just because another employer may have decided on a different sanction, does not mean that the sanction imposed will be unfair. The law recognises that there are a range of appropriate responses in any situation.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.