When determining cases of unfair dismissal, it has long been established that Employment Tribunals must consider objectively whether or not the dismissal was within the “range of reasonable responses” available to the employer in all of the circumstances of the case. It is only if the dismissal falls outside that range that it will be unfair. If it is within the range, the Tribunal cannot substitute its view for that of the employer, even if it would have decided differently, if it had been in the employer’s shoes. The Court of Appeal, in the case of Turner v East Midlands Trains Ltd, has had to consider whether or not the range of reasonable responses test is compatible with the European Convention on Human Rights.
T was a senior conductor for East Midlands Trains, and was dismissed for fraudulently selling faulty tickets and keeping the proceeds. She brought a complaint in the Employment Tribunal arguing her dismissal was unfair, on the basis that the investigation was inadequate and evidence insufficient. She also, however, alleged that her dismissal engaged Article 8 of the European Convention on Human Rights (right to a private life), as her dismissal had damaged her reputation, her relationships with colleagues, and her ability to obtain another job. On that basis, she argued, Article 8 required the Tribunal to adopt a “proportionality” test, which she alleged had a higher standard, rather than the traditional “range of reasonable responses” test in assessing the fairness of the dismissal. The Tribunal found T’s dismissal to be fair, and held that the range of reasonable responses test was compatible with Article 8.
The Court of Appeal has now upheld this finding, concluding that the range of reasonable responses test "provides a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss", including procedural safeguards. Recourse to a proportionality test "simply obfuscates and potentially complicates the essentially simple concept of a fair procedure". It therefore found that the range of reasonable responses test was flexible enough to protect Article 8 rights when they were engaged, and such rights, if applicable, were part of the “circumstances of the case” to which the Employment Tribunal must have regard when applying the test.
Impact for Employers
- This case provides clarity that the range of reasonable responses test applies to all cases of unfair dismissal, even those which engage Convention rights. The Court of Appeal did however clarify that those cases which did engage Convention rights may require a higher degree of investigation on the part of the employer.
- The Court of Appeal also clarified that where a dismissal will significantly affect an employee’s reputation, this may engage Article 8, however accepted that an employee could not rely upon Article 8 when the reputational damage was a foreseeable consequence of their own actions.