Post Office v Foley; HSBC Bank plc v Madden
The band of reasonable responses test remains the correct approach to the fairness of a dismissal, and tribunals must not substitute their own view for that of the employer.
Facts
In Foley, a postman was dismissed for being absent from work without permission and being seen in a pub during working hours. In Madden, a bank employee was dismissed for allegedly stealing customers' debit cards and using them. In each case, the employment tribunal held the dismissal unfair. The Employment Appeal Tribunal, in Madden, had held that the band of reasonable responses test should no longer be applied, because it set too low a standard for employers.
Legal principle
The Court of Appeal held that the band of reasonable responses test, and the test in British Home Stores v Burchell, remained binding on tribunals. Mummery LJ said that the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer, and that the band of reasonable responses applies both to the decision to dismiss and to the procedure by which that decision is reached. Both dismissals were fair, and the tribunals had erred in substituting their own views.
Related cases on unfair dismissal
- Abernethy v Mott, Hay and Anderson [1974] ICR 323
- British Home Stores Ltd v Burchell [1980] ICR 303
- Iceland Frozen Foods Ltd v Jones [1983] ICR 17
- Kuzel v Roche Products Ltd [2008] EWCA Civ 380, [2008] ICR 799
- Polkey v AE Dayton Services Ltd [1988] AC 344
- Royal Mail Group Ltd v Jhuti [2019] UKSC 55, [2020] ICR 731
- Sainsbury's Supermarkets Ltd v Hitt [2002] EWCA Civ 1588, [2003] ICR 111
- Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602
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