[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary]
When deciding whether a dismissal is within the range of reasonable responses, can an employment tribunal take into account matters which the employer did not take into account?
No, says the EAT in Nejjary v Aramark Ltd.
The Claimant was dismissed for three matters. On appeal his employer upheld the dismissal, expressly relying on only one matter as gross misconduct. The tribunal found that the decision to dismiss for this one matter would have been outside the range of reasonable responses but given that the employee had previous warnings on file, it found that the decision to dismiss was within the range of reasonable responses.
The EAT held that the tribunal had erred in taking into account matters which the employer had not had in mind as part of the reason for dismissal. The reason for dismissal "is the reason which was extant and operative in the mind of the employer".