Turner v East Midlands Trains Ltd

The band of reasonable responses test is an objective standard governing every aspect of an unfair dismissal, including the investigation and procedure. It is distinct from the Wednesbury perversity test and prevents a tribunal from substituting its own preferred decision.

Where dismissal may seriously damage an employee’s reputation, employment prospects or private life, the reasonable employer must conduct an appropriately careful investigation. This flexible standard provides the procedural fairness required by article 8 of the European Convention on Human Rights. Article 8 does not introduce a separate proportionality inquiry into procedural fairness.

A senior train conductor was dismissed for dishonestly manipulating a ticket machine, selling apparently valid tickets and retaining the proceeds. The employer relied principally on statistical evidence showing that she had produced substantially more automatic non-issued tickets than any other conductor.

The Employment Tribunal dismissed her unfair dismissal claim. It found that article 8 of the European Convention on Human Rights was not engaged and that, in any event, the conventional band of reasonable responses test was compatible with article 8. The Employment Appeal Tribunal concluded that it was bound by X v Y but granted permission to appeal.

The central issue was whether article 8 required a more rigorous assessment of the employer’s investigation than the test under section 98(4) of the Employment Rights Act 1996.

1. Appeal dismissed. The objective band of reasonable responses test under section 98(4) of the Employment Rights Act 1996 was compatible with the procedural protection required by article 8 of the European Convention on Human Rights. The employee had conceded that the investigation satisfied the domestic test, so the appeal failed: [2012] EWCA Civ 1470, paras 49–58.
2. The domestic test applies to the investigation, disciplinary procedure and sanction. It is not the Wednesbury perversity test and is not subjective. The tribunal makes an objective assessment of whether the employer acted within the responses open to a reasonable employer, without substituting its own preferred decision: paras 16–19.
3. The seriousness of an allegation and the consequences of dismissal form part of the relevant circumstances. Alleged criminal or immoral conduct, reputational damage and impairment of future employment may require a particularly careful investigation. The reasonable employer must examine potentially exculpatory as well as inculpatory evidence, although the safeguards of a criminal trial are not required: paras 20–22.
4. Damage to reputation, substantial employment restrictions and interference with social relationships may in an appropriate case fall within private life under article 8. A person cannot rely on article 8 for reputational loss foreseeably caused by that person’s own wrongdoing. That principle requires the wrongdoing to have been established through a proper process: paras 27–48.
5. Article 8 requires a fair decision-making process which gives practical and effective protection to the interests it safeguards. The band of reasonable responses test is sufficiently flexible to provide heightened procedural protection where the consequences are grave. A separate procedural proportionality inquiry would obscure the applicable question of fairness: paras 41–57.
6. In any event, the employer’s investigation was fair and adequate. The proposed inquiry into sales by ticket inspectors would have been burdensome and, at best, equivocal. The remaining suggested explanations had been investigated sufficiently. Even under the stricter standard advanced by the employee, the Tribunal would inevitably have reached the same conclusion: paras 59–70.
7. Sir Stephen Sedley agreed that there was no article 8 watershed transforming fairness into proportionality. The required degree of due process is calibrated to the grounds and consequences of dismissal. Maurice Kay LJ agreed with both judgments: paras 71–76.

1. Court of Appeal (Civil Division): Dismissed the employee’s appeal and upheld the Employment Tribunal’s conclusion that the dismissal was fair: [2012] EWCA Civ 1470 .
2. Employment Appeal Tribunal: HHJ Serota QC held that the Tribunal was bound by X v Y and that the appeal had no reasonable prospect of success there, but granted permission to appeal to the Court of Appeal because the arguments were important.
3. Employment Tribunal: Dismissed the unfair dismissal claim. It held that article 8 was not engaged and that, in any event, the band of reasonable responses test was compatible with article 8.