Judicial Reform of Unfair Dismissal Law: Recent Developments in the Range of Reasonable Responses

Abstract

UK unfair dismissal law has been widely criticised for being unduly favourable to the interests of the employer, and correspondingly unhelpful to dismissed employees. Since it was first articulated in 1981, the range of reasonable responses test has obscured the statutory language establishing the right of employees not to be unfairly dismissed, and it has imposed an unwarranted barrier to employee success in claims of unfair dismissal for misconduct. The range test decrees that an employment tribunal (ET) may find a conduct dismissal unfair only if no reasonable employer would have dismissed in those circumstances, establishing the broadest possible conception of the term 'reasonable', which is the term the Employment Rights Act 1996 sets as the test for the fairness of an employer's decision to dismiss. More seriously, the test prohibits ETs from 'substituting' their own views for those of employers with respect to whether dismissal can be considered a reasonable response in the circumstances. Because of this privileging of employers' views, finding a dismissal to be unfair has exposed ETs to a disproportionate risk of reversal by higher courts, skewing the unfair dismissal system in favour of the employer by making a finding of fair dismissal the safer course for ETs. As a result, the protection provided to employees by the right not to be unfairly dismissed has been weakened.