Unfair dismissal – Determination whether dismissal fair or unfair – Reasons justifying dismissal – Range of reasonable responses test
Turner v East Midlands Trains Ltd: Court of Appeal, Civil Division (Maurice Kay VP, Lord Justice Elias and Sir Stephen Sedley): 16 November 2012
The claimant employee was employed as a senior train conductor by the defendant employer. The employer accused the employee of deliberately manipulating the ticket machine that she used during the course of her work so as to produce rejected tickets of sufficiently merchantable quality to give the appearance of being genuine tickets, and had then fraudulently sold those tickets to members of the public and dishonestly kept the proceeds. The employee denied the allegations.
There was no direct evidence that the employee had acted in the manner alleged. The case against her had been based upon statistics and the inferences, which, the employer alleged, could properly be drawn from those statistics. The employee was dismissed and issued proceedings claiming unfair dismissal. She contended that it had not been legitimate for the employer to have drawn the inferences that it had because there were other factors which tended to suggest that the statistics might have been inaccurate or misleading.
Further, the employee submitted that there had been an inadequate investigation which, if properly explored, might have demonstrated that the statistics were unreliable, and that her dismissal had engaged her rights under article 8 of the European Convention on Human Rights and the investigation had not satisfied the stricter procedural requirements which article 8 required. The employment tribunal (the tribunal) held the statistics had been indicative of repetitive pilfering, and had been atypical of dishonesty in the workplace, and that, accordingly, her dismissal had not been outside the band of reasonable responses. Further, the tribunal held that article 8 of the Convention had not been engaged, and that, even if article 8 had been engaged, the traditional band of reasonable responses test was itself compatible with article 8. The employee appealed to the Employment Appeal Tribunal, which refused permission to appeal. The employee appealed.
The employee submitted, inter alia, that her dismissal had been of a nature and quality that had engaged her rights under article 8 of the Convention, that the tribunal had been required to determine the proportionality test in article 8(2) and be satisfied that the fair procedures, including fair and proper investigations had been adopted. The tribunal had not adopted that approach but had applied the traditional unfair dismissal test, asking itself whether a reasonable employer could have considered that the investigations undertaken had been adequate, and whilst the employee conceded that the employer had satisfied the domestic standards of the reasonable employer, the standards that it had been required to meet when article 8 of the Convention had been engaged were stricter, and the tribunal should have found that that standard had not been reached. The appeal would be dismissed.
The band of reasonable responses test did not simply apply to the question whether the sanction of dismissal was permissible, but bore upon all aspects of the dismissal process, including whether the procedures adopted by the employer were adequate and whether the pre-dismissal investigation was fair and appropriate. The band of reasonable responses test was not a subjective test. It provided an objective assessment of the employer's behaviour whilst reminding the tribunal that the fact that it would have assessed the case before it differently from the employer did not necessarily mean that the employer had acted unfairly.
Further, when determining whether an employer had acted as the hypothetical reasonable employer would have done, it was relevant to have regard to the nature and consequences of the allegations. Accordingly, if the impact of a dismissal for misconduct would damage the employee's opportunity to take up further employment in the same field, or if the dismissal involved an allegation of immoral or criminal conduct which would harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation. The test was whether a reasonable employer could have acted as the employer had.
However, more was expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they were proved, were particularly serious. Where article 8 interests were engaged, matters bearing upon the culpability of the employee had to be investigated with the full appreciation of the potentially adverse consequences to the employee. The band of reasonable responses test allowed for a heightened standard to be adopted where those consequences were particularly grave.
Accordingly, the band of reasonable responses test provided a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss to ensure compliance with article 8 of the Convention. The domestic test of fairness had not fallen short of the procedural safeguards required by article 8 of the Convention (see -,  of the judgment).
In the instant case, the employee had conceded that the procedures carried out by the employer had satisfied domestic standards. Accordingly, given that the domestic standards had reflected article 8 requirements, it had followed that the appeal would be dismissed (see  of the judgment).
British Home Stores Ltd v Burchell  IRLR 379 applied; Whitbread plc (t/a Whitbread Medway Inns) v Hall  All ER (D) 338 (Feb) applied; Sainsbury's Supermarkets Ltd v Hitt  All ER (D) 259 (Oct) applied; A v B  All ER (D) 184 (May) applied; Roldan v Salford NHS Trust  All ER (D) 110 (May) applied; Palomo Sánchez v Spain (Application Nos 28955/06, 28957/06, 28959/06 and 28964/06)  IRLR 934 applied.
Heather Williams QC and Paul Draycott (instructed by Thompsons Solicitors) for the employee; Jason Galbraith-Marten and Sheryn Omeri (instructed by Kennedys Solicitors) for the employer.