Band of reasonable responses

An employment tribunal does not ask whether it would have dismissed you. It asks whether dismissal fell within the range of responses a reasonable employer could have adopted — a deliberately wide standard that decides more unfair dismissal cases than any other single test.

Does the tribunal ask whether it would have dismissed me?

No, and this is the single most common misunderstanding about unfair dismissal. The tribunal does not substitute its own judgment for the employer's. Under section 98(4) of the Employment Rights Act 1996, the question is whether dismissal fell within the range of responses that a reasonable employer, acting reasonably, might have adopted in the circumstances — not whether the tribunal members themselves would have dismissed, or would have preferred a warning instead.

So can a dismissal be harsh but still fair?

Yes. A dismissal can strike the tribunal as severe, and even as a decision many employers would not have made, and still be fair — provided it falls somewhere within the band of responses a reasonable employer could have reached. Only a decision that falls outside that range, one that no reasonable employer could have reached, is unfair on this ground.

How does the band of reasonable responses test relate to the Burchell test?

They apply to different questions. The Burchell test (from British Home Stores Ltd v Burchell) structures the fact-finding stage in misconduct cases: did the employer genuinely believe the employee was guilty, on reasonable grounds, after a reasonable investigation. The band of reasonable responses test is the broader standard applied to the ultimate decision to dismiss — in misconduct cases and in every other category of dismissal under section 98. A dismissal can pass Burchell and still fail the band test if the sanction of dismissal itself was outside what a reasonable employer could have chosen.

Does the size of my employer make a difference?

It can. Section 98(4)(a) of the Employment Rights Act 1996 expressly directs the tribunal to have regard to the size and administrative resources of the employer's undertaking when deciding whether the response was reasonable. A small business with no HR function is not held to exactly the same procedural standard as a large employer with a dedicated HR team, though both must still act within a reasonable range.

Has this test ever been successfully challenged?

It came close. In Haddon v Van den Bergh Foods Ltd, the EAT criticised the test as unhelpful and close to a perversity standard. The Court of Appeal settled the point in Post Office v Foley and HSBC Bank plc v Madden, holding that both the band of reasonable responses test and the Burchell test remain binding, and that Haddon had wrongly treated the test as a test of perversity. The band of reasonable responses standard, as set out in Iceland Frozen Foods Ltd v Jones, remains the law.

Does this mean an employer can never be found to have dismissed unfairly for misconduct?

No. The band gives employers a range, not unlimited discretion. A dismissal for a trivial first offence, a dismissal based on an investigation that fell short of what a reasonable employer would carry out, or a dismissal where the employer ignored mitigating evidence entirely, can all fall outside the band and be found unfair. The band is wide, not infinite.

What the test asks, and what it deliberately does not ask

Section 98 of the Employment Rights Act 1996 splits unfair dismissal into two questions. The first is whether the employer had a potentially fair reason for dismissal — capability, conduct, redundancy, illegality, or some other substantial reason. The second, set out in section 98(4), is whether the employer acted reasonably in treating that reason as sufficient to dismiss, having regard to equity and the substantial merits of the case, and to the size and administrative resources of the employer's undertaking.

The band of reasonable responses is the name given to how tribunals apply that second question. It comes from Iceland Frozen Foods Ltd v Jones, in which the Employment Appeal Tribunal, led by Browne-Wilkinson J, set out what has become the standard formulation: the tribunal must not ask whether, had it been the employer, it would have dismissed the employee. It must ask whether the decision to dismiss fell within a band of reasonable responses which a reasonable employer might have adopted. If it falls within that band, the dismissal is fair. If it falls outside, the dismissal is unfair.

That framing matters because it rules out a particular line of argument that claimants often reach for instinctively: that the employer was wrong, or that the tribunal members themselves would have handled things differently. Neither is the test. A tribunal member who privately thinks a written warning would have been fairer than dismissal cannot find the dismissal unfair on that basis alone. The tribunal has to go further and conclude that dismissal was a decision no reasonable employer could have reached on the facts available at the time.

This is sometimes described as guarding against a substitution mindset — the risk that an employment tribunal, composed of people who are not themselves running the business, quietly replaces the employer's judgment with its own. The band of reasonable responses test is the mechanism that is meant to stop that happening, by asking about the outer edges of reasonableness rather than about the single best decision.

How it relates to the Burchell test

The band of reasonable responses test is often mentioned in the same breath as the Burchell test, and the two are easy to blur together, but they answer different questions.

British Home Stores Ltd v Burchell structures the fact-finding stage of a misconduct dismissal. It asks three things: did the employer genuinely believe the employee had committed the misconduct; did the employer have reasonable grounds for that belief; and did the employer carry out as much investigation into the matter as was reasonable in the circumstances. Burchell is specific to misconduct cases, and it is concerned with how the employer arrived at its conclusion about what happened.

The band of reasonable responses test operates at a different, later stage, and applies across every potentially fair reason for dismissal, not just misconduct — capability, redundancy, illegality, and some other substantial reason are all assessed against it too. Once the employer's belief and investigation have been tested under Burchell (where misconduct is the reason), the band of reasonable responses test asks the separate question of whether dismissal, as the sanction chosen, was a response a reasonable employer could have landed on. An employer can satisfy Burchell in full — a genuine belief, reasonable grounds, a thorough investigation — and still lose, if dismissal itself (as opposed to, say, a final written warning) fell outside the range of responses open to a reasonable employer for that particular act of misconduct, by that particular employee, with that particular disciplinary record.

Put another way: Burchell asks whether the employer was entitled to believe what it believed. The band of reasonable responses test asks whether, having reached that belief, dismissing was something a reasonable employer could have chosen to do about it.

The criticism, and why tribunals keep applying it this way

The band of reasonable responses test has long attracted the criticism that it gives employers an unduly wide margin, allowing dismissals that look harsh, or even wrong, to survive simply because they are not outlandish. The test came closest to being dislodged in Haddon v Van den Bergh Foods Ltd, where the Employment Appeal Tribunal suggested the test was conceptually confused and effectively asked tribunals to apply something close to a standard of perversity — whether no sensible employer could possibly have reached the decision — which is a much harder standard for a claimant to meet than ordinary reasonableness.

The Court of Appeal resolved the disagreement in Post Office v Foley and HSBC Bank plc v Madden, heard together. The Court held that Haddon had been wrong to treat the band of reasonable responses test as a perversity test, and reaffirmed both the band of reasonable responses approach from Iceland Frozen Foods and the Burchell test as binding on tribunals and on the Employment Appeal Tribunal. The width of the band, the Court confirmed, is deliberate rather than an accident of drafting.

The reasoning behind that width is consistent, even if the result can feel uncomfortable to a dismissed employee. Employment tribunals are not intended to function as a free-standing appeal body against every dismissal decision, applying their own preferred standard of workplace management. Businesses vary enormously in size, sector, risk tolerance and disciplinary culture, and the people best placed to judge a proportionate response to a particular act of misconduct or a particular performance failure are, in the first instance, the people managing that business. The band of reasonable responses test accepts that more than one response can be reasonable for the same set of facts — dismissal and a final written warning can sometimes both sit inside the band for the same conduct, with different employers reasonably landing on each.

What this means in practice if you are bringing a claim

The practical effect for a claimant is that showing the employer treated you harshly, or that another manager would have given you a second chance, is not, on its own, enough to win an unfair dismissal claim on the reasonableness ground. You need to show that dismissal fell outside the range of responses any reasonable employer, in that employer's position, could have reached.

In practice, that case is usually built from specifics rather than general fairness: disciplinary records that were not consulted, comparable cases where other employees committed similar or worse conduct and were not dismissed (inconsistent treatment can take a decision outside the band), mitigating circumstances the employer ignored entirely, or a sanction wildly out of proportion to a minor, isolated lapse with an otherwise clean record. The ACAS Code of Practice on disciplinary and grievance procedures is also relevant here: an employer who skipped warnings, denied a right of appeal, or failed to hold a proper hearing has not necessarily put the sanction itself outside the band, but a tribunal finding those procedural failures can still affect both the fairness finding and any compensation uplift.

The size and resources of the employer cut both ways. A very large employer with a dedicated HR and legal function is generally expected to run a more careful process than a five-person business with no HR support, and a tribunal weighing whether dismissal was within the band will take that difference into account under section 98(4)(a).

Daniel has worked for a mid-sized logistics company for four years with a clean disciplinary record. He is dismissed after being found to have taken a 40-minute unauthorised break during a shift, in breach of company policy. The employer carries out a short investigation, holds a disciplinary hearing, and dismisses him for gross misconduct without any prior warning.

Daniel argues the sanction was disproportionate: this was a first offence, he offers an explanation (a family emergency he was reluctant to disclose at the time), and two colleagues who took similarly long unauthorised breaks in the previous year received only written warnings.

Genuine belief, reasonable grounds, adequate investigation — likely satisfied

Band of reasonable responses question

Was dismissal, as opposed to a warning, within the range open to a reasonable employer?

Clean record; comparable cases treated differently; mitigating explanation available but possibly not sought

Arguable that dismissal fell outside the band given inconsistent treatment

The tribunal does not ask whether it would have dismissed Daniel — some tribunal members might well have done the same. It asks whether, given the comparable treatment of other employees for similar conduct and Daniel's clean record, dismissal was a response within the range a reasonable employer could have chosen, rather than the only response the employer happened to choose on this occasion.

Employment Rights Act 1996, section 98

Iceland Frozen Foods Ltd v Jones [1983] ICR 17

Post Office v Foley; HSBC Bank plc v Madden [2000] ICR 1283

ACAS Code of Practice on disciplinary and grievance procedures

Band of Reasonable Responses — Employment Tribunal Glossary

What the band of reasonable responses test means, how it relates to the Burchell test, and why showing a dismissal was harsh is not enough to win an unfair dismissal claim.