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Band of reasonable responses test remains … but what does it mean?

In Turner v East Midlands Trains Ltd [2012] EWCA 1470  the Court of Appeal has held that the well- known “band of reasonable responses” test for s.98 of the Employment Rights Act 1996 did not need modification when it is alleged that a dismissal engaged the dismissed employee’s Article 8 right (right to respect for family and private life).

The case involved a train conductor dismissed for suspected dishonesty. The essential reason given by Elias LJ in his leading judgment was that the band of reasonable responses test, if satisfied, would necessarily imply compliance with Article 8 requirements:

“Like Mummery LJ in the case of X v Y [2004] ICR 1634 I find it very difficult to see how a procedure which could be considered objectively fair if adopted by a reasonable employer could nonetheless be properly described as an unfair procedure within the meaning of Article 8.”

Elias LJ emphasised that it was “a firmly established principle of unfair dismissal law” that the band of reasonable responses test applied to section 98; that it is not for the tribunal to substitute its own view for that of the reasonable employer; that the statutory section must be considered by the standards of the hypothetical reasonable employer rather than its own subjective views; and that the band of reasonable responses test was different from a perversity test. This latter point was made explicitly clear by the Court of Appeal in Post Office v Foley [2000] ICR 1283.

None of the above is new or controversial. What is not discussed in the Turner is how the “band of reasonable responses” test differs from the outlawed perversity test. In Foley Mummery LJ, in seeking to explain how the range of reasonable responses test differed from a perversity test explained how there may be cases in which there is no range to consider. He gave two examples:

“If, for example, an employee, without good cause, deliberately sets fire to his employer’s factory and it is burnt to the ground, dismissal is the only reasonable response. If an employee is dismissed for politely saying “Good morning” to his line manager, that would be an unreasonable response. But in between those extreme cases there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response. In those cases it is helpful for the tribunal to consider “the range of reasonable responses”.

Mummery LJ’s examples are plainly extreme: I like the “without good cause” qualification to the act of arson, and one might question whether the polite hello in the second example involves misconduct at all. The implication is that in the vast majority of real life cases there will or might be a range of reasonable responses. But if that is so, in order to establish that a dismissal is unfair because it is outside the range of reasonable responses, it seems to me it must be necessary to show that no reasonable employer could have decided to dismiss: if a reasonable employer could have decided to dismiss it must follow that dismissal is within the range of reasonable responses since, ex hypothesi, a reasonable employer could reasonably so have concluded. But the difference between a “no reasonable employer could have decided to dismiss” test, and the outlawed perversity test is not obvious (at least to me).

In view of the eminence of the judges who have confirmed that there is a difference between the two tests, one might safely assume that there is one. But it is curious that such a familiar and important component of unfair dismissal law remains less than entirely clear, 30 years after Iceland Frozen Foods Ltd. v. Jones [1983] I.C.R. 17.

Clarification may however shortly be forthcoming: in the recent case of Tayeh v Barchester Healthcare Limited, in which I appeared for the Respondent, the Court of Appeal was specifically invited to clarify precisely this point.  Judgment in Tayeh is currently reserved (so watch this space for a further Littleton Comment if the conundrum is clarified).
Related link:  Profile of Daniel Tatton Brown
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