Harsh But Fair—The ‘Range of Reasonable Responses’ Test and the ‘Substitution Mindset’ Revisited: Newbound v Thames Water Utilities Ltd

Abstract

Most recent commentary about the state of domestic statutory protection against unfair dismissal has understandably focused on the severely reduced number of claims being brought before the employment tribunals. This reduction in the number of unfair dismissal claims has been attributed in large part to the introduction of the fees regime but has no doubt also been influenced both by the increase to the eligibility requirement to bring such a claim, which applies save in the exceptional circumstances prescribed by the Employment Rights Act 1996 (‘ERA 1996’), from one to two years’ continuous service and other labour market factors. Newbound v Thames Water Utilities Limited [2015] IRLR 734, CA is not only a relatively rare opportunity for the Court of Appeal to consider the proper application of the ‘range of reasonable responses’ test (‘RRT’) in unfair dismissal claims and the grounds for a review by the Employment Appeal Tribunal (‘EAT’) of a decision by an employment tribunal (‘ET’) on the basis that the ET has adopted the ‘substitution mindset’. It also demonstrates that the RRT remains entrenched as the correct way in which to apply the statutory wording of section 98(4) of ERA 1996. This decision therefore provides an opportunity to reflect again on whether this longstanding formulation of the test of unfair dismissal properly reflects the underlying statutory scheme and whether the RRT provides appropriate protection for employees.