The test for fair dismissals has an uncertain future, following the Supreme Court’s ‘mischievous’ criticism of the ‘band of reasonable responses test’.
The test, which refers to the obligations on an employer when dealing with a dismissal for misconduct, has been criticised by legal academics for giving too much scope to employers. It derives from principles set out in British Home Stores v Burchell [1980] ICR 303.
According to Stephen Levinson, consultant solicitor at Keystone Law, the Justices made ‘oblique criticisms’ of the test in their judgment in March, in Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16, involving a primary school headteacher dismissed for failing to disclose her close friendship with a man who was convicted of making indecent images of children.
Writing in NLJ this week, he says ‘both Lord Wilson and Lady Hale made comments that inferred doubt as to whether this was the correct approach when deciding if an employer had acted reasonably under s 98(4) of the Employment Rights Act 1996.
‘It is apparent that neither of these speculative forays was necessary to determine the case,’ he says.
‘What also appears obvious is that the two judges wished it had been possible to challenge Burchell.
‘She and Lord Wilson would prefer to use a different test giving judges greater say. This is why the charges of mischief and disingenuousness apply because there can be no doubt that both judges are well aware of the debate they will engender and of the fundamental shift in power that removing the band of reasonable decisions test may make.’
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