I started a joke…

“I started a joke…”

When the brothers Gibb started a joke, it didn’t end well. Their single still reached the top spot in Australia, though. 

The Employment Appeal Tribunal (EAT) in London recently considered a case where a “joke” didn’t end well, with the “joker” being dismissed for gross misconduct.


The employee posted a racist “joke” on the company intranet. Although he hadn’t considered it to be offensive, he demonstrated remorse. The employee had long service and a previously unblemished record.   

The employer’s policy expressly stated breaches relating to harassment, bullying, or equality, diversity, and inclusion (EDI) as examples of gross misconduct that could result in dismissal. The chair of the disciplinary hearing felt restrained by the policy. He felt that a written warning would demonstrate that they did not take EDI seriously enough. The employee was dismissed for gross misconduct. 

The Employment Tribunal (ET) considered this did not fall within the ‘band of reasonable responses’ and held that his dismissal was unfair. “[A]ny sanction more serious than a final written warning was outside the band of reasonable responses”. No reasonable employer would have taken the decision to dismiss. 

There was, however, a 25% reduction in the award to take account of the employee’s conduct.

The employer appealed to the Employment Appeal Tribunal (EAT).

On Appeal

The correct test is: Was it reasonable for the employer to dismiss him?  If no reasonable employer would have dismissed the employee, the dismissal would be deemed unfair. Suppose the ET concluded that the dismissal was unfair because they themselves would not have dismissed the employee. In that case, they then commit the error of substituting their own view of the appropriate sanction for that of the employer rather than taking a band of

reasonable responses approach.

The EAT held that the ET allowed their decision to be influenced by the judge’s own view of the employee’s conduct with regard to mitigating factors on which the claimant relied. Any tribunal properly applying the law would have recognised that dismissal was indeed within the band of reasonable responses open to the employer in this case. The finding of unfair dismissal was overturned.


It is not for an ET to involve their own opinion. Their role is simply to determine whether it was reasonable for the employer to dismiss the employee. 

As an employer, remember this during the disciplinary procedure and be mindful of alternative sanctions. Consider: Would a reasonable employer have dismissed the employee for the same conduct?

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