The “Band of Reasonable Responses”

No, not a new pop-group but instead an important criterion when deciding whether to dismiss an employee. Recently, in dismissing a security guard for smoking, the action of an employer (Shield Security Services) fell outside a range of responses that a “reasonable” employer might take. It cost them dear.

The security guard was found smoking inside almost empty premises and dismissed. This was found to be unfair by a Tribunal and that decision was supported by the Employment Appeal Tribunal (EAT). Makbool Javaid gives a detailed analysis in People Management but we are unsurprised at the decision.

While smoking is illegal, it is important for disciplinary rules to be clear as to whether a particular action could lead to dismissal and employees should know this in advance. If there is good reason (eg petroleum spirit present in the workplace) then smoking should be listed as Gross Misconduct. But that was not the case here.

In the particular circumstances, dismissing an employee who had had a good work record on a single act of misconduct was not an action that (in the view of the Tribunal and the EAT) a reasonable employer would take.

Apart from the question of disciplinary rules, other matters that a reasonable employer might consider include:

  • The immediate reaction of colleagues and managers to a misdemeanour
  • The practical seriousness of the misdemeanour
  • The employee’s length of service and any previous disciplinary warnings
  • How you might have reacted in other circumstances of comparable seriousness

A valuable test of reasonableness is to take an outside opinion. While it is ultimately for a Tribunal to decide if a particular course of action is that of reasonable employer, simply talking it through with an experienced party can give a different perspective. In this instance not only did reactive behaviour cost the employer two court hearings but no doubt reputational damage internally and externally as well.

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