Haddon v Van Den Burgh Foods Limited EAT/1160/98 IRLR November 1999 672
This is probably the most important unfair dismissal case since Polkey as, at last, the Courts have been prepared to review the famous "band or range of reasonable responses" test used in unfair dismissal claims together with that other stock defence of employers: The Tribunal is not allowed to substitute its own view for that of the employers.
The facts of this particular case were remarkable in themselves. Mr. Haddon had 15 years of blameless service as a result of which the company were giving him a good service award. Prior to the award there was some indication that Mr. Haddon would have to go back to work after the presentation for the rest of his shift. The company then invited Mr. Haddon and his wife to attend a presentation, gave him a present and alcohol at which point Mr. Haddon decided it was not safe for him to go back to work. The company claimed that this was a refusal to carry out a reasonable instruction and dismissed him as a result.
When the matter came to the Tribunal it was clear they wanted to find in favour of Mr. Haddon but concluded that the employers decision to treat Mr. Haddon's failure to return to work as gross misconduct was not unreasonable in that the decision to dismiss was not outside the range of reasonable responses. They believed that the decision was one that many reasonable employers would not have taken but it was not enough for them to uphold the complaint.
The EAT overturned this decision not simply on the grounds that the decision was perverse but on the grounds that the Tribunal had failed to properly consider and apply the terms of Section 98 (4) of the Employment Rights Act 1996.
The EAT held that the question for the Tribunal is the reasonableness of the decision to dismiss which is an objective test. They are an industrial jury and they are allowed to take into account what they would have done when deciding whether or not what the employers did was or was not reasonable.
The EAT also went on to hold that the current application of the "band of reasonable responses" test had led to decisions of the employers being judged on an extreme perversity test. In other words only those decisions that were perverse were being overturned by Tribunals. The EAT went on to say that S98(4) requires the consideration of "equity" which requires consideration of the matter from the employees point of view as well as that of the employers.
This new approach has already affected two other decisions of the EAT, Everitt v BT, EAT 399/98 in which the EAT again emphasised that the individual employee's circumstances had to be taken into account, and Wilson v Ethicon EAT 624/99 in which the EAT upheld an appeal because the Tribunal had failed to consider factors other than the reasonableness of the investigation. The correctness of the Haddon approach has therefore been accepted by three different divisions of the EAT emphasising that it is therefore not a one-off decision.
The importance of this case cannot be overstated. Tribunals have been hamstrung and prevented from judging for themselves whether a dismissal was reasonable. Now a proper assessment can be made in accordance with the wording of the Act.