Employee misconduct and UK unfair dismissal law

Abstract

PurposeThe purpose of this paper is to expose practical and theoretical problems with the range of reasonable responses (RORR) test as applied in UK unfair dismissal law, and to propose an alternative interpretation of the test that would resolve these problems.Design/methodology/approachThrough a close analysis of the purpose and structure of UK unfair dismissal law, and a careful reading of the leading cases in the area, the paper questions whether the law as it is currently interpreted achieves the goals of the underlying legislation. The current interpretation of the law being found lacking, alternatives are considered and evaluated.FindingsThe RORR test, as delineated in the most recent Court of Appeal cases, holds that dismissals are fair unless they are based on a reason for which no reasonable employer would dismiss. This interpretation of the test is internally incoherent; moreover, it fails adequately to promote the goals of unfair dismissal law, which are to protect the dignity and autonomy of employees. An alternative and superior interpretation of the test would hold a dismissal to be outside the RORR if no rational theory of management would condone dismissal on the grounds given by the employer.Social implicationsThe paper draws attention to fundamental incoherence in the current interpretation and application of unfair dismissal law, and suggests a new and better approach. If the new approach were accepted by the courts or by Parliament, it could lead to reform in unfair dismissal law.Originality/valueThe paper provides a detailed analysis of the RORR test, a long‐standing and well‐recognized problem in UK unfair dismissal law, and suggests a novel solution that would improve the coherence and function of unfair dismissal law.