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Unfair Dismissal: Band of Reasonable Responses

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Was a tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses?

No, held the EAT in Vaultex v Bialas.

The Claimant posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished service record and apologised for his actions. The Respondent dismissed the Claimant for gross misconduct.

The tribunal held that the Claimant had been unfairly dismissed. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed.

The EAT held that the tribunal had substituted its own view for that of the Respondent. The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. It substituted a finding of fair dismissal.