Vaultex UK Ltd v Robert Bialas

In assessing the fairness of dismissal for misconduct under section 98(4) of the Employment Rights Act 1996, the tribunal must decide whether dismissal was within the band of reasonable responses open to the employer. It must assess the decision-maker’s reasonable view of the misconduct and mitigation, rather than its own view of the appropriate penalty.

An employee’s remorse, willingness to retrain, long service and clean record may be relevant. They do not make dismissal unfair where the employer fairly considered them and could reasonably regard the misconduct as sufficiently serious. An appellate tribunal may substitute a finding of fairness where, on the facts found, dismissal was the only conclusion lawfully open to a tribunal applying the correct test.

The claimant, a long-serving employee with no prior disciplinary record, posted a racist joke on the employer’s company-wide intranet. The employer dismissed him for conduct after considering his apologies, remorse, offer of retraining and employment record.

The Employment Tribunal upheld his unfair-dismissal claim. It held that dismissal fell outside the band of reasonable responses, while reducing compensation and the basic award by 25% for contributory conduct. The employer appealed, contending that the tribunal had substituted its own view of sanction and, alternatively, reached a perverse conclusion.

The central issue was whether dismissal for the post was within the range of reasonable responses open to the employer.

1. Appeal allowed. The Employment Tribunal had correctly directed itself on the band of reasonable responses, but its reasoning showed that it had not applied that test in substance.

2. The tribunal had to assess whether it was reasonably open to the dismissing manager, on the information available to him, to dismiss. It instead allowed its own assessment of the seriousness of the conduct and mitigating circumstances to influence the outcome. The availability of a final written warning did not itself show that dismissal was outside the reasonable range.

3. The employer had considered the claimant’s apologies, remorse, offer of retraining, long service and clean record. Those matters can affect fairness if they are not fairly considered. They do not prevent dismissal merely because a tribunal would give them greater weight. A reasonable employer could regard seriously thoughtless, non-malicious conduct as warranting dismissal because of its impact and implications.

4. The tribunal’s criticism of the employer’s failure to verify the particular section of the website from which the joke was obtained did not establish procedural unfairness. The tribunal had found the procedure generally fair, and an employer is not invariably required to pursue every line of enquiry requested by an employee.

5. Given the racist content, its publication to the whole workforce, the employer’s equality, diversity and inclusion policies, and the stated possibility of dismissal for a first offence, dismissal was within the band of reasonable responses. Any tribunal applying the law correctly would have reached that conclusion. The EAT substituted a finding that the dismissal was fair.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the dismissal was fair: [2024] EAT 19.
• Employment Tribunal: Upheld the unfair-dismissal claim, finding dismissal outside the band of reasonable responses, and reduced the basic and compensatory awards by 25% for contributory conduct.