Employment

Unfair dismissal - employee's misconduct - appropriate applicable test of employer's reasonableness

Foley v The Post Office; HSBC Bank Plc (formerly Midland Bank Plc) v Madden: CA (Nourse, Mummery and Rix LJJ): 31 July 2000

Employees, dismissed from their employment for misconduct following disciplinary hearings, claimed unfair dismissal before industrial tribunals.

In F's case, the tribunal dismissed his claim, holding that the employer had established the reason for the dismissal and acted reasonably in treating that reason as sufficient.

The Employment Appeal Tribunal, upholding F's appeal, reversed the decision.

M's claim was allowed by the tribunal and the employers' appeal dismissed.

Both employers appealed.

David Bean QC and Robin White (instructed by the Post Office solicitor, Croydon) for the Post Office; David Reade (instructed by Simpson Millar) for Mr Foley; Peter McMaster (instructed by Addleshaw Booth & Co, Leeds) for HSBC Bank Plc; Manjit Gill QC and Mr Edward Fitzpatrick (instructed by Procaccini Farrell & Co) for Mr Madden.

Held, allowing both appeals, that fundamental aspects of the law of unfair dismissal and the interpretation of s.98 of the Employment Rights Act 1996 were in a state of uncertainty following recent decisions of the Employment Appeal Tribunal; that the approach set out in Iceland Frozen Foods Ltd v Jones [1983] ICR 17, 24-25 - 'the band or range of reasonable responses' - and in British Home Stores v Burchall [1980] ICR 303, 304, 308 was to be applied to determine the issue of the employer's reasonableness in dismissing the employee; that Haddon v Van den Bergh Foods Ltd [1999] ICR1150 and Madden v Midland Bank Plc [2000] IRLR 288 were not to be followed and tribunals were not to approach issues of reasonableness by reference to their own judgment of what they would have done had they been the employer; and that the Employment Appeal Tribunal applied the wrong test and erred in holding that the employees had been unfairly dismissed.