Are Jokes Within the Band of Reasonable Responses in Gross Misconduct Dismissals?

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.

Background: Gross Misconduct Dismissal Over a Racist Joke

In this case, an employee posted a racist joke on the company intranet. Although the employee did not intend to offend and showed genuine remorse, the incident raised serious concerns. The employee had a long service record and an otherwise unblemished employment history.

The employer’s disciplinary policy clearly identified breaches related to harassment, bullying, and equality, diversity, and inclusion (EDI) as examples of gross misconduct potentially leading to dismissal. The disciplinary hearing chair felt constrained by the policy and believed that issuing a written warning would undermine the company’s commitment to EDI. Ultimately, the employee was dismissed for gross misconduct.

Employment Tribunal’s Decision: Was the Dismissal Within the Band of Reasonable Responses?

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).

Appeal and Employment Appeal Tribunal (EAT) Ruling

The employer appealed the decision to the Employment Appeal Tribunal. The key legal question was whether it was reasonable for the employer to dismiss the employee. The EAT clarified that if no reasonable employer would dismiss in the same situation, the dismissal is unfair. But if the tribunal imposes its own view rather than applying the band of reasonable responses test, it commits a legal error.

The EAT found that the ET had substituted its own opinion for that of the employer and failed to apply the correct test. The appeal court concluded that dismissal was within the range of reasonable responses available to the employer and overturned the unfair dismissal ruling.

Key Takeaways for Employers: Applying the Band of Reasonable Responses in Gross Misconduct Cases

Employment tribunals are not meant to second-guess employer decisions based on personal views but must assess whether the dismissal falls within the spectrum of reasonable employer responses. Employers should:

• Understand and clearly communicate disciplinary policies, especially regarding gross misconduct and EDI breaches.
• Ensure decisions are supported by evidence and are proportionate to the misconduct.
• Consider whether a reasonable employer in the same position might have dismissed the employee.
• Be aware that tribunals may intervene only when decisions fall outside the band of reasonable responses.

Final Thoughts

Employers should carefully document disciplinary decisions and consider alternative sanctions before dismissal. Remember: the band of reasonable responses test protects employers who act reasonably and proportionately but also safeguards employees from unfair treatment.

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