In light of section 98(4) Employment Rights Act 1996 (ERA), the Employment Tribunal (ET) is required to determine whether a dismissal is fair or unfair based upon the band of reasonable responses test ("BORR").
The "BORR" is an objective test, namely, would any other reasonable employer in that type of business dismiss the employee, taking account of all the circumstances of the case.
The "BORR" test applies not only to the dismissal hearing but also to the investigation process that led to the dismissal hearing.
Iceland Frozen Foods v Jones (1983) emphasises that the (ET) should not substitute its own decision for the course of action the employer has taken but must follow the objective test having regard to "equity and the substantial merits of the case" and taking account of any mitigating factors like, amongst other things, the employee’s length of service, experience in the role, prior warnings, training and internal policies and procedures.
The Court of Appeal emphasised that the test for fairness must not become one of perversity. Thus, "BORR" does not mean that (ET) are powerless to act when an employer's decision to dismiss is simply too harsh, as in the case of Bowater v Northwest London Hospitals NHS Trust [2011] IRLR 331 CA, where a nurse during the end of her long shift made an isolated lewd comment in a public place whilst in the process of restraining an unconscious patient, which the employer perceived as a breach of her nursing code and professional standing but the Court of Appeal held that the decision to dismiss for such misconduct was unfair where, amongst other things, there was no evidence that the patient or any member of the public heard it.
In another case, the (ET) held that the dismissal of an experienced bakery employee of 11 years’ service was fair when he failed to wash his hands in breach of the employers' zero tolerance health and safety hygiene rules as the employer, Greggs, was entitled to expect better from such an experienced worker having been in the industry for some 25 years. Donovan v Greggs plc.
There is an interesting recent Irish case of Arkadiusz Grzyb v Lidl suggesting that the employer must ensure that the "punishment fits the crime" in determining what disciplinary sanction is appropriate, in particular where the employee has an explanation for the conduct carried out.
In the above case, the employee with 10 years’ service and a good service record was dismissed for gross misconduct where he had at the end of his shift removed some low-value bakery items and applied a "waste not" procedure so that he and his staff could buy them at a discounted rate rather than being written off and disposed of.
The Tribunal confirmed that the dismissal did not come within the band of reasonable responses and was disproportionate and identified that there was a lack of clarity on the discounting of goods and no alternative to dismissal had been considered.
Although the above case was determined in Ireland, the application of the same principles could apply in the Tribunals of England and Wales, although there was an (ET) decision where the trivial nature of the subject matter, here the theft of a baked potato, amounted to gross misconduct-Brown v Springs Sanctuary Spa-Low Fell Ltd ET/2511670/2009. Hence the application of "BORR" will turn on its own facts.
The "BORR" test is problematic but remains an important feature of employment law procedure. Thus, where dismissals are being anticipated, it is prudent for employers to obtain HR Guidance.
The article is for informational and educational purposes only and should not be relied upon as legal advice.
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