Zero tolerance: Employment Appeal Tribunal decision on unfair dismissal and the band of reasonable responses

The Employment Appeal Tribunal (EAT) have upheld an appeal against a tribunal’s decision that an employee’s dismissal was unfair, stating that, notwithstanding the harshness of the employer’s decision, dismissal for the employee’s actions was within the band of reasonable responses.

Facts

In Vaultex UK Ltd v Bialas, a tribunal decided Mr Bialas was unfairly dismissed for posting a racist joke on the company intranet because dismissal was not within the band of reasonable responses available to the employer. Mr Bialas had found a joke on the internet which he proceeded to re-post on the company intranet – apparently unaware of its racist and offensive nature. A work colleague reported the post, and the joke was removed. A disciplinary officer investigated the incident and determined that the joke was, indeed, racist and dismissed Mr Bialas in spite of his long service and previously good record. In coming to their decision, the disciplinary officer was particularly cognisant of the company’s zero tolerance policy on discriminatory language. Mr Bialas, subsequently, brought a claim for unfair dismissal.

Decision

The tribunal concluded that the decision to dismiss was unfair because it was outside of the band of reasonable responses. In coming to its decision, the tribunal noted that there were other options available to the employer, that throughout the process Mr Bialas was very apologetic and there was no malice motivating Mr Bialas’ actions. The decision was appealed to the EAT.

The EAT upheld the appeal. The EAT noted that although there were other options open to the employer, this did not mean that dismissal was therefore not an option within the band of reasonable responses. It noted that a dismissal should not be found to be unfair on the basis that it would be reasonable to impose a lesser sanction or that a different employer acting reasonably might come to a different decision. In the context of a zero tolerance policy on discriminatory language, the EAT found that dismissal for a first offence of this nature fell within the band of reasonable responses.

Comment

The band of reasonable responses available to an employer is wide – particularly when the behaviour complained of is in breach of a zero-tolerance policy. Consequently, employers who have zero-tolerance policies should be able to enforce them. However, decisions should always be made on a case by case basis. What will be an appropriate sanction is fact specific and will depend on the particular circumstances and evidence before the disciplinary officer.

For advice on disciplinary procedures, dealing with misconduct or dismissal decisions, please speak to a member of the employment team who will be able to assist.