Overview of the range of reasonable responses test

March 28, 2024

Case law has established the key principles of fairness for conduct dismissals. In considering whether a dismissal is fair, an employment tribunal (ET) will consider, amongst other things, whether the dismissal was within the range of reasonable responses open to a reasonable employer. This requires a tribunal to analyse whether the decision to dismiss was within the range of possible responses that another reasonable employer in those circumstances would have taken. Consideration has to be given as to whether the decision was one an employer could reasonably make. It is not about whether an ET would have reached a different decision if it had been the employer - that would be substituting its own view.

The test applies not only to the final decision reached by an employer but also to the investigation which led to that decision. In considering whether the scope and extent of an investigation is in the range of reasonable responses, again an ET needs to consider whether the investigation was conducted in a manner that another reasonable employer would undertake, rather than whether an ET itself would have investigated differently.

Case background considered by the EAT

An employee used discriminatory language during their employment. Following a disciplinary process, the employer considered that, given its zero-tolerance policy to discriminatory language, the appropriate sanction was dismissal. The employee brought an unfair dismissal claim and, in the circumstances, the ET deemed the dismissal to be outside the range of reasonable responses. In reaching this decision, the ET found that, in light of mitigating factors put forward by the employee such as an apology, no other reasonable employer would have taken the decision to dismiss. The employer appealed and the EAT held that, rather than applying the band of reasonable responses test, the ET had erroneously fallen into the substitution mindset. It had relied on the view of the judge who considered that the mitigating factors should have resulted in a lesser sanction.

Balancing reasonableness and mitigating factors

What amounts to a reasonable response has to take account of mitigating factors. A tribunal needs to make an objective evaluation as to whether an employer's decision to dismiss is within the scope of reasonable responses to all the circumstances. In reaching a decision, an employer will need to consider any mitigating factors put forward by the employee. These can be wide-ranging but generally include length of service, pattern of conduct, remorse, personal issues and general relationship of the employee with colleagues and the wider company. Consideration must be given to these factors but, as shown in the case above, even where such factors are advanced by the employee as mitigation for their actions, it is still possible for a dismissal to be within the range of reasonable responses available to an employer.

If an employer acted reasonably in conducting its investigation and in reaching a decision to dismiss, taking into account the relevant circumstances at the time, the ET's subjective view and any new mitigating factors brought forward at the tribunal hearing will usually be irrelevant.

Practical implications for employers

This case follows a long line of decisions upholding the range of reasonable responses test which recognizes that employers have some discretion in their decision-making process, including when mitigating factors have been raised. It is entirely possible that two employers on the same set of facts would take different decisions. Despite this, the sanction of dismissal imposed by one will not be unfair simply because the other chose not to dismiss, provided that sanction falls within the reasonable range of responses.

If an employer ultimately decides that mitigating factors, such as those we have discussed here, do not outweigh circumstances otherwise justifying dismissal, they should make sure they are documenting the reasons for this conclusion in case of future challenge. Detailed records serve as a useful contemporaneous note and may help persuade an ET to find that an employer has followed the general principles of fairness under the Acas Code.