Band of Reasonable Responses

The band of reasonable responses test is central to how tribunals decide unfair dismissal claims.

The Test Explained

What It Means

The tribunal asks:

"Did the employer's decision to dismiss fall within the band of reasonable responses that a reasonable employer could have adopted?"

Not Substitution

Tribunal must NOT ask:

• What would I have done?
• Was this the right decision?
• Would I have been more lenient?

The Range

Different reasonable employers might:

• Dismiss
• Give final warning
• Give written warning
• Require training

If dismissal falls within this range, it's fair.

How It Works

The Approach

Step	Question
1	What did the employer believe?
2	Did they have reasonable grounds?
3	Did they conduct reasonable investigation?
4	Was dismissal within reasonable range?

Two Employers Scenario

Imagine two reasonable employers in same situation:

• Employer A might dismiss
• Employer B might give final warning
• Both responses could be reasonable
• Tribunal won't prefer one over other

Outside the Band

Dismissal is unfair if:

• No reasonable employer would dismiss
• Response is obviously excessive
• Ignores clear mitigation
• Defies logic or fairness

Application in Practice

Misconduct Cases

Tribunal considers:

• Seriousness of misconduct
• Employee's record
• Mitigation offered
• Treatment of others
• Policy provisions

If range of reasonable employers might dismiss, dismissal is fair.

Capability Cases

Tribunal considers:

• Whether improvement was possible
• Support and training given
• Time allowed to improve
• Impact on business
• Alternatives explored

Redundancy Cases

Less room for band - must follow proper process. But selection criteria and scoring have some range.

Case Examples

Within the Band

Situation	Why Fair
Dismissal for theft despite long service	Reasonable employer could dismiss for serious misconduct
Dismissal after third warning	Reasonable to escalate sanctions
Dismissal for safety breach	Reasonable given risk
Capability dismissal after PIP failed	Reasonable given support provided

Outside the Band

Situation	Why Unfair
Dismissal for first minor lateness	No reasonable employer would dismiss
Dismissal when others got warnings	Inconsistent treatment
Dismissal with no investigation	Process so flawed no reasonable employer
Ignoring serious medical evidence	Failed to consider relevant factors

The BHS v Burchell Test

For Misconduct

Standard test from British Home Stores v Burchell:

1. Genuine belief - employer believed employee guilty
2. Reasonable grounds - for that belief
3. Reasonable investigation - conducted at time

Combined with Band

After Burchell:

• Was the investigation reasonable?
• Was belief on reasonable grounds?
• Did dismissal fall within band?

Common Misconceptions

"Tribunal will substitute its view"

Wrong. Tribunal cannot say "we would have given a warning" - they must ask if dismissal was within range.

"Harsh means unfair"

Wrong. Dismissal can seem harsh but still be fair if within the band. Tribunals are not there to find the "right" answer.

"Employee must be guilty"

Wrong. Question is whether employer had reasonable belief based on reasonable investigation - not absolute proof.

"Lenient past means unfair now"

Not necessarily. Past leniency doesn't prevent proper enforcement, though consistency is a factor.

Factors Affecting the Band

Makes Band Wider

Factor	Effect
Gross misconduct	Dismissal more likely reasonable
Safety critical role	Higher standards expected
Previous warnings	Escalation justified
Clear policy breach	Less room for leniency

Makes Band Narrower

Factor	Effect
Minor misconduct	Dismissal harder to justify
Long service	More mitigation expected
First offence	Lesser sanction often appropriate
Provocation	May reduce culpability

Procedural Fairness

Affects the Band

Process matters because:

• Reasonable employer follows fair process
• Procedure is part of reasonableness
• Serious flaws may take response outside band

Polkey Reduction

Even if procedure flawed:

• Tribunal can find unfair dismissal
• But reduce compensation
• If fair procedure would have led to same result

Arguing the Band

For Employees

Arguments that dismissal outside band:

• No reasonable employer would dismiss for this
• Sanction disproportionate to misconduct
• Ignored significant mitigation
• Inconsistent with similar cases
• Process so flawed it's unreasonable

For Employers

Arguments that dismissal within band:

• Other reasonable employers would dismiss
• Consistent with policy
• Proportionate to seriousness
• Fair process followed
• Mitigation considered

Tribunal Assessment

What Tribunal Examines

• What did employer actually consider?
• What information did they have?
• Was investigation reasonable?
• Was decision within range?
• Did process meet standards?

Evidence Needed

To Show	Evidence
Reasonable investigation	Investigation notes, witness statements
Genuine belief	Decision-maker's statement
Considered mitigation	Hearing notes, letter
Within band	Policy, comparators, reasoning

Practical Points

For Employees Facing Dismissal

• Document all mitigation
• Highlight any procedural failures
• Identify comparator cases
• Note any disproportionate elements
• Consider overall fairness

Questions to Ask

• Would any reasonable employer dismiss for this?
• Has the employer considered alternatives?
• Is this consistent with other cases?
• Has all mitigation been weighed?
• Was the process fair?

For Appeals

Argue:

• Decision-maker failed to consider mitigation
• Sanction disproportionate
• Inconsistent treatment
• No reasonable employer would dismiss

Key Case Law

Leading Cases

Case	Principle
Iceland Frozen Foods v Jones	Established band test
BHS v Burchell	Misconduct test
Sainsbury's v Hitt	Band applies to investigation too
Foley v Post Office	Confirmed approach

What Cases Show

• Tribunal must not substitute its view
• Range of reasonable responses, not one right answer
• Employer entitled to its view within band
• Perversity is high threshold

Summary

The Test

1. Did employer have genuine belief in misconduct/reason?
2. Was that belief based on reasonable grounds?
3. Was reasonable investigation conducted?
4. Was dismissal within range of reasonable responses?

Key Points

• Band test favours employers somewhat
• But response must still be reasonable
• Process matters as well as outcome
• Tribunal cannot substitute its judgment
• Perverse decisions are outside the band