It used to be said that Employment Tribunals are not to place themselves in the position of the employer. It is not for them to decide whether they would have arrived at the employer’s decision themselves. Rather their task was to decide if the employer’s decision (in the context of dismissal) lay “within a band of responses that a reasonable employer might make”. Iceland Frozen Foods Ltd v Jones [1983].
Hence the emphasis on procedure and a broad acceptance that if an employer followed a fair procedure then the outcome itself would only be open to question if it fell outside the band of responses that a reasonable employer might make.
It is easy to feel that no longer to be the case.
In Eversheds Legal Services Ltd v De Belin [2011] we have an employer making what we might feel was a reasonable decision about redundancy. The employer, a prominent legal firm, most certainly felt so. But in this instance the Employment Tribunal disagreed. The Tribunal decision (subsequently upheld by the Employment Appeals Tribunal) went against the employer. Resting on a fine legal point it was decided that the use by the employer of a particular adjustment in its selection process, had produced an unfair decision.
I know how Eversheds must feel. Time and again I find myself saying to employers: “I cannot answer that question – it would be a matter for an Employment Tribunal to decide. It would depend on its own interpretation of the law.”
How can we run businesses, or public services, when every employment decision (in the De Belin case simply about how to interpret performance) could be referred to a costly and extended legal process?
The legal process needs to stand back from detailed involvement in day to day management decision-making. That process needs to recognise that employers need to make decisions on a daily, even hourly, basis. It needs to recognise that if a decision lies within a band of responses that a reasonable employer might make then that should be sufficient.