Morison J., in one of his final decisions as President, appears to have abolished the 'range of reasonable responses' test developed in Burchell in unfair dismissal misconduct cases.
Haddon: The Facts
Mr Haddon was presented with a Good Service Award by his employers at a special presentation event after 15 years of service. He was told that he would have to return to work, to finish his shift, for one-and-a-half hours after the award ceremony.
At the ceremony, alcohol was available. Knowing of the company's rules that employees were not permitted to return to work after drinking at such ceremonies, he decided not to return to finish his shift.
The company's disciplinary procedures provided that a 'failure to carry out reasonable instructions' was gross misconduct. Mr Haddon was subjected to the disciplinary procedure for failing to complete his shift and dismissed.
The Employment Tribunal's Decision
The employment tribunal held that "most people would regard [his dismissal] as harsh". However, it held that it was reasonable for the employer to require Mr Haddon to finish his shift and, since failure to follow reasonable instructions was a specific act of gross misconduct set out in the disciplinary handbook, "it is not possible for us to say that dismissal was outside the range of reasonable responses."
The EAT's decision
The EAT held that tribunals have to go back to the wording of ERA 1996, s98(4), which requires tribunals to look at the equity and substantial merits of the case. Tribunal member must decide what is a reasonable response. Often, the best starting point is to consider what the tribunal members' themselves would have done in similar circumstances.
However, situations will arise when it may reasonable to dismiss, but equally reasonable not to dismiss. Adopting a 'range of reasonable responses' test was, effectively, applying a Wednesbury unreasonableness test to the employers' decision - and this is not what s94 requires. By adopting the traditional Burchell test, employment tribunals "were shrinking from the task which Parliament had imposed upon them to pass judgment on the fairness or otherwise of the dismissal."
Morison J.'s judgment is clear and informative. In a stark passage, he states that "we respectfully suggest that tribunals now return to the task in hand which is to apply the section without embellishment, and without using mantras so favoured by lawyers in this field.".
Pending an appeal, it looks as though we may all have to find a new stock phrase in hopeless cases!