Range of Reasonable Responses: Iceland Frozen Foods v Jones  ICR 17
When considering whether a misconduct dismissal was fair or not, the Tribunal not only looks at whether the employer had a reasonable belief that the employee was guilty of the misconduct (as in the Burchell test laid out in BHS v Burchell) but they also have to consider whether the employer’s decision to dismiss was within the range of a reasonable employer. I.e. would another employer facing a similar situation have decided to dismiss. The case in which these principles were laid down was in the Employment Appeal Tribunal for the case of Iceland Frozen Foods v Jones.
In this case the employee a Mr Jones worked as a foreman at a warehouse. The night shift worked from 10pm till 6am and if all the employees had worked more than 40 hours in the night shift then they would get overtime paid. One of Mr Jones’ duty was to unlock the warehouse and disconnect the electronic security system at the beginning of the shift and at the end of the shift to lock up the warehouse and office accommodation and re-activate the security system before the day shift began later on. The day in question the day shift began and found the office accommodation to be unlocked (the warehouse was locked) and the electronic security system had not been re-activated. The Warehouse distribution manager also looked into the hours worked by the night shift and found them to have worked the full 8 hours but that the number of loaded items was 20% less than on the previous night. He believed they worked on go-slow to ensure overtime was paid for the week and that Mr Jones, as foreman was party to the go-slow. The conclusion following a ten-minute meeting on the day of the events was that Mr Jones was summarily dismissed.
The initial Tribunal decision was to find Mr Jones had been unfairly dismissed however the Appeal Tribunal remitted the case to the Tribunal to consider the matter again. The Tribunal felt that the mistake made by the Tribunal was minor however in Appeal the Judge went on to say that not necessarily all reasonable employers would feel that it was a minor mistake and it is not up to the Tribunal to decide how employers would judge it’s importance. They also felt that when it came to reasonableness the Tribunal should have judged both the procedural and substantive issues together rather than as separate points.
Range of Reasonable Responses-The Judgment:
The law for this band of reasonable responses was laid out in the judgment and is as follows:
The starting point should always be the words of section 98(4) themselves;
In applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the tribunal) consider the dismissal to be fair;
In judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
In many (though not all) cases there is a band of reasonable responses to the employee conduct within which one employer might reasonably take one view, another quite reasonably take another;
The function of the Industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair
So in the above case if other employers might have reasonably have been expected to dismiss the employee then it is most likely for this test be considered fair. This however does have to be linked with the Burchell reasonableness test and is not the be all and end all in what decides whether a dismissal was fair or not.