Dismissal within range of reasonable responses

In Tayeh v Barchester Healthcare Limited he Court of Appeal has given more guidance on the role of Tribunals in reviewing the fairness of an employer’s decision to dismiss.

The Claimant was a nurse in a residential care home working on a night shift. She was dismissed for gross misconduct. The Tribunal held that the dismissal did not fall within the range of reasonable responses open to the employer. The EAT found that the Tribunal had wrongly substituted its own view for that of the employer and that, if it had not done so, the dismissal would have been fair. The Court of Appeal pointed out that whether or not a dismissal falls within the band of reasonable responses is either simply a finding of fact or else a finding in a nature of a value judgment akin to such finding of fact. Either way, once the Tribunal had made its finding, that should be the end of the matter. There is no appeal against a Tribunal decision on a finding of fact, only an error of law. However an error of approach is an error of law if the Tribunal substitutes its own view for that of the employer as to whether or not an offence warrants dismissal.

This is further note for employers to carefully consider the proportionality of dismissing in any given circumstances. Whether or not dismissal is within the range of reasonable responses in the circumstances of each situation is crucial and employers should consider the other potential responses and only dismiss if alternative sanctions are simply not appropriate.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.