A recent appeal case shows that the range of reasonable responses test really does have some teeth after all.

A dismissal for misconduct will be fair if the employer ticks four boxes (and, of course, follows a fair procedure). The employer must:

  • carry out a reasonable investigation
  • honestly believe the employee is guilty of the alleged misconduct
  • have reasonable grounds for that belief

and

  • the dismissal must be within a range of reasonable responses to the employee's misconduct, measured by the standards of a hypothetical reasonable employer.

Facts

In Graham v Secretary of State for Work and Pensions, Graham had worked for the DWP for 30 years, latterly as a manager in a Jobcentre. Her record was exemplary. She helped a young man, Moss, whose personal situation was very difficult and who was a friend of a friend of her daughter's, to look for a job. It was alleged that this help was given in breach of DWP rules. The investigating manager decided that

  • Moss had become Graham's acquaintance, so she should not have used her position to help him
  • she had breached security by taking him into the staff canteen for a sandwich
  • she had left him unattended by her work computer for a short time. She was dismissed summarily for gross misconduct.

ET decision

The employment tribunal found that Graham had not helped Moss after she had become his "acquaintance". So, in fact, all she had done wrong was to take Moss to the Jobcentre canteen and to have left him sitting unattended at her computer for a short period. The tribunal concluded that dismissal on these grounds was outside the range of reasonable responses.

EAT Decision

The DWP appealed to the Employment Appeal Tribunal (EAT). The EAT said it thought that, on the evidence, Graham had in fact helped Moss after she had become his acquaintance. It held that the tribunal had wrongly substituted its own view of the evidence for that of the employer and that the dismissal "... plainly and unarguably fell within the range of reasonable responses ...".

CA Decision

The Court of Appeal held that the employment tribunal had been right first time and the EAT was wrong. There was evidence that the investigating officer was unable to define what was meant by "acquaintance" and had not made any clear finding that Moss was Graham's acquaintance at the time that she helped him. So the tribunal had been entitled to conclude that the DWP did not have reasonable grounds for believing that Graham was guilty of this allegation.

The Court of Appeal held that the "range of reasonable responses" test does not mean that a decision to dismiss is unreasonable only if it is shown to be perverse. It agreed with the employment tribunal that to dismiss Graham summarily for gross misconduct in respect of the two other allegations (taking Moss to the staff canteen and leaving him unattended by her computer) was outside the broad band of reasonable responses, looked at from the objective point of view of the hypothetical reasonable employer.

Comment

Although this case is not a landmark decision, it does show that the "range of reasonable responses" test has some teeth after all. The key practical lesson for employers is that any findings of fact relied on to justify dismissal must be clearly established and documented in order to bring the dismissal decision within the required range.

This article was first published in People Management on 17 July 2012

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