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Employee with long clean disciplinary record fairly dismissed following racist incident

on Wednesday, 13 March 2024.

The Employment Appeal Tribunal (EAT) has found that an employee was fairly dismissed for posting a racist joke to the staff intranet, despite his strong remorse over the incident.

Band of reasonable responses test

Where employers are considering their response to issues such as misconduct or incapability, there may be a range of responses that could be imposed. These may span from an informal warning to summary dismissal. Inevitably, different employers will approach an issue in different ways. In recognition of this, the Tribunals have developed the 'band of reasonable responses' test, which requires the Tribunal to ask whether the employer's response fell within the range of reasonable responses open to it. If a sanction falls outside this range, then the dismissal would be deemed unfair.

In the case of Vaultex UK Ltd v Bialas (summarised below), the EAT has issued helpful guidance on the application of the band of reasonable responses test.

What is the factual background of the case?

In this case, an employee (the eventual claimant) posted a racist joke to a staff intranet page. The joke was reported and the employee apologised, saying he had not realised it was racist.

Following a disciplinary procedure, the employee was dismissed. Whilst the employee had long service, an exemplary record and expressed remorse for his actions, the employer took the view that dismissal was warranted given its zero tolerance approach to discriminatory language. The concern was that any sanction short of dismissal would undermine the employer's commitment to diversity and inclusion in the workplace.

The employee brought an unfair dismissal claim, which the Tribunal upheld. It found that the sanction fell outside the range of reasonable responses it was open to the employer to impose. In reaching its decision the Tribunal took into account the employee's previous clean disciplinary record, his long service, his remorse and willingness to undertake training, and the possibility that the joke had been posted due to misunderstanding rather than malice.

The respondent employer appealed to the EAT.

EAT decision

The EAT allowed the appeal, finding that the Tribunal had erred in its application of the reasonable responses test. Instead of properly considering the range of potential responses open to the employer, the Tribunal had instead substituted its own view on the appropriate sanction, which is not permitted. The fact that the employer could have imposed a lesser sanction did not mean it was obliged to do so. The right conclusion was that dismissal fell within the range of reasonable responses open to the employer.

Learning points

The fairness of a dismissal might be called into question where relevant context, such as remorse or a willingness to undertake training, has not been taken into account by an employer. However, this does not mean that an employer who has considered the wider context will necessarily have acted unfairly if it imposes a decision to dismiss.

This is a useful example of the application of the band of reasonable responses test. It acts as a demonstration of the distinction between that test, and the substitution mindset which the Tribunal fell into.

For more information or advice, please contact Jessica Scott-Dye in our Employment team on 0117 314 5652, or complete the form below.

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