When deciding unfair dismissal claims, tribunals have to consider whether the employer acted reasonably in all the circumstances. In Rooney v Dundee City Council, the Employment Appeal Tribunal (EAT) held that it was within the range of reasonable responses for an employer to dismiss an employee, even though they had not heard an outstanding appeal relating to a formal written warning.

Basic facts

In August 2010, Ms Rooney, a cashier supervisor, took payment of £10,000 from a member of the public for arrears of rent, contrary to instructions from her manager. Following a disciplinary hearing in September, she was given a final written warning lasting 15 months. She lodged an appeal but for various reasons, it was never heard.

In December 2011, Ms Rooney failed to follow instructions again, this time over a failure to balance her cash box on time and ended up in an argument with another member of staff and her manager. The Council went ahead with a second disciplinary hearing in March 2012 at which she was dismissed, although her appeal against the final, written warning had still not been heard.

The officer hearing the appeal carried out a complete review of the first disciplinary process to ensure it was fair. She agreed that the final written warning was justified and could see no reason to ignore it. She accepted that Ms Rooney would not have been dismissed had it not been for the live warning.

Ms Rooney claimed unfair dismissal.

Tribunal decision

The tribunal judge said that the question he had to answer was whether the Council “entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time” and found that it had.

Although he would not have taken the same approach and found the decision “harsh”, the judge concluded that it was one that the Council was entitled to come to. As it was within the range of reasonable responses for an employer to make, the dismissal was fair.

EAT decision

The EAT said that the employment judge had applied the correct test - whether it was within the range of reasonable decisions that an employer might make knowing that the appeal against the final written warning had not been heard.

Although concerned that the appeal had not been heard at the date of dismissal and that he might not have come to the same decision, the judge had also been mindful of the fact that he must not substitute his own view for that of the employer.

In applying the “range of reasonable responses” test to decide whether the decision was fair, the judge had considered both the decision to proceed without hearing the appeal and the decision to dismiss.

The judge had carefully - and correctly - applied the law and taken into account the outcome of the decision for Ms Rooney. He took the view that it was an outcome which was within the range of reasonable responses and his decision that the dismissal was fair should be upheld.