Look Ahead Housing and Care Ltd v Rudder

In determining whether a dismissal is unfair, the tribunal must ask whether the employer’s decision fell within the range of reasonable responses open to a reasonable employer. It must assess the dismissal actually imposed, rather than substitute a different sanction which it considers preferable.

The fact that a lesser sanction might have been appropriate, or that the tribunal would have acted differently, does not establish unfairness. A tribunal must avoid treating the absence of consideration of alternative sanctions as a separate ground of unfairness where the dismissal itself falls within the permissible range.

An employee of a housing charity was dismissed for gross misconduct after findings that he had made comments concerning Muslim prayer and Muslims in the workplace. The employment tribunal found procedural unfairness because a central witness had not been available for questioning, but concluded under section 98A(2) of the Employment Rights Act 1996 that a fair procedure would not have altered the outcome.

The tribunal nevertheless held the dismissal substantively unfair. It considered that the employer had failed to consider whether a sanction short of dismissal was appropriate, although it had accepted the seriousness of the conduct, the employee’s role and the employer’s zero-tolerance policy. The employer appealed, contending that the tribunal had applied its own view of the appropriate sanction instead of the range of reasonable responses test.

1. Appeal allowed. The finding of unfair dismissal was set aside and the dismissal was held to be fair.
2. Under section 98(4) of the Employment Rights Act 1996, the question is whether the employer acted reasonably in treating the reason shown as sufficient for dismissal. In a misconduct case, that requires consideration of whether dismissal fell within the range of reasonable responses open to a reasonable employer.
3. The tribunal must examine the employer’s action, namely the decision to dismiss. It must not determine whether some lesser sanction would have been preferable or replace the employer’s decision with its own.
4. The tribunal’s reasoning impermissibly mixed its own assessment of whether the conduct justified dismissal with the question whether dismissal fell within the permissible range. Its statement that the decision to dismiss was not unreasonable answered the material question. Treating the absence of consideration of an alternative sanction as independently critical imposed the tribunal’s own view of the appropriate penalty.
5. The tribunal had accepted the nature of the employee’s role, the organisation’s zero-tolerance policy towards discriminatory conduct and the seriousness of the proven comments. Its procedural unfairness finding could not affect the result because it had concluded under section 98A(2) that a fair procedure would have made no difference.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the dismissal was fair.
• London South Employment Tribunal: Found the employee unfairly dismissed, with 80 per cent contribution, while concluding that procedural defects would not have altered the outcome under section 98A(2) of the Employment Rights Act 1996.