Royal Bank of Scotland Group v Lindsay

An employment tribunal must assess whether dismissal falls within the range of reasonable responses open to a reasonable employer. It must not substitute its own view of the appropriate sanction, even where it considers dismissal disproportionate. The tribunal must apply that approach in substance, not merely state it. An appeal will succeed where the tribunal evaluates the seriousness of the misconduct for itself, relies on unsupported comparisons, or overlooks material aggravating circumstances. The case may then be remitted for reconsideration of the sanction and, consequentially, fairness under Employment Rights Act 1996.

A manager was dismissed for gross misconduct after forwarding sexually explicit pornographic images to a more junior employee. The Employment Tribunal accepted that the employer had a genuine belief in the misconduct, had reasonable grounds for that belief, and had conducted a reasonable investigation. It nevertheless held that dismissal was grossly disproportionate and outside the range of reasonable responses.

The employer appealed, contending that the tribunal had substituted its own assessment of the appropriate sanction. The central issue was whether the tribunal had properly applied the range-of-reasonable-responses test.

1. Appeal allowed. The Employment Tribunal had erred in law by substituting its own view of the reasonableness of dismissal for that of the employer.
2. The tribunal relied on the sending of allegedly sexist emails by a more senior manager as mitigation, although neither the tribunal nor the employer had seen their contents. It was therefore not possible to assess their gravity reliably.
3. The tribunal also failed to give proper weight to the claimant’s senior managerial position. The employer was entitled to regard the conduct of senior managers as relevant to leadership and compliance with organisational standards.
4. The tribunal made its own assessment that the pornographic material and the misconduct fell towards the lowest end of the relevant policy spectrum. The proper question was whether the employer’s assessment and decision to dismiss fell within the range of reasonable responses of a reasonable employer in the circumstances.
5. The tribunal’s findings concerning the potentially fair reason, the employer’s belief, and the reasonableness of the investigation remained undisturbed. Those findings included the matters identified in British Home Stores Ltd v Burchell [1978] IRLR 379.
6. The case was remitted to a differently constituted Employment Tribunal to decide whether dismissal fell within the range of reasonable responses and, depending on that determination, to decide fairness under section 98(4) of Employment Rights Act 1996. The other relevant findings and determinations were to stand.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the Employment Tribunal’s finding of unfair dismissal and remitted the sanction and consequential fairness issues for reconsideration.
• Employment Tribunal: Found that the employer had a potentially fair conduct reason, a genuine belief supported by reasonable grounds, and had carried out a reasonable investigation, but held that dismissal was outside the range of reasonable responses.