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Tribunal Trapped! (In their own “substitution mindset”)

May 7, 2024

The case of Vaultex UK Ltd v. Bialas recently provided some useful insights for Tribunals to remind them to avoid adopting a ‘substitution mindset’ as well as recognising that employers do in fact have a wide discretion when deciding on appropriate sanctions for their employees who misbehave.

Facts

Mr Bialas worked as a coin processor (what a fun sounding job) at Vaultex UK Ltd which is a cash processing company. When the company launched their new intranet, Mr Bialas decided to look up a ‘clean’ joke to post on the intranet and get a few laughs from his colleagues – his first mistake. He settled on a joke which was described as ‘appropriate for the workplace,’ and posted the following:

“Something for Anti-Racist campaign from Dagenham Coin:
Do not be racist; be like Mario. He’s an Italian plumber, who was made by the Japanese, speaks English, looks like a Mexican, jumps like a black man, and grabs coins like a Jew!”

*Big sigh*. The post was reported for racism a few minutes after it was posted, and then removed by the IT department. Mr Bialas was consequently then taken through a disciplinary investigation and, maintaining that he did not realise that the post was racist, apologised and asked to be retrained.

Unfortunately for Mr Bialas, Vaultex had a “zero-tolerance” policy for discriminatory language. When making his decision, the chair of the disciplinary hearing considered all of the facts – Mr Bialas’s long service, his perfect record and his clear remorse. Nevertheless, he believed that a written warning would clash with the zero-tolerance policy and Vaultex’s commitment to equality, diversity and inclusion, and in turn, dismissed Mr Bialas who then brought a claim of unfair dismissal before the Employment Tribunal.

The ET found that the dismissal was unfair due to it being outside the ‘band of reasonable responses.’ The Tribunal considered many factors in coming to this decision. It took into account Mr Bialas’s unblemished record and long service, sincere remorse and willingness to undergo diversity training (hence showing insight into the impact of his post) and pointed out that Mr Bialas’s misunderstanding of the words used and the setting in which the ‘joke’ was delivered suggested a degree of misinterpretation rather than malice. Finally, the Tribunal highlighted that dismissal was not the only option under Vaultex’s “zero-tolerance” policy – there was a middle ground that could have been taken.

Dissatisfied with the decision, Vaultex appealed.

The Band of Reasonable Responses Test (“BORR”)

Is that a “what is the band of reasonable responses test” I hear? Great question! ‘BORR’ is an objective test, and as an employer, something to consider when faced with a dismissal. Ask yourself this: “would any other reasonable employer in that type of business dismiss the employee, taking account of all the circumstances of the case?”

Seems un-problematic, right? Aside from the fact that we are all different and think differently, and it is completely unrealistic to expect everyone to respond the same in one set of circumstances, and that there is a band of reasonable responses for every situation! But not to worry, this is something that Tribunals have long acknowledged when determining the fairness of a dismissal. They understand that two employers both acting reasonably may decide on different sanctions when faced with the same situation.  That is where this notion of a reasonable band of responses comes into its own. 

Decision

In this case, the EAT provided a useful analysis on the ‘band of reasonable responses’ test. It established that rather than applying this test, the ET had fallen into the ‘substitution mindset’ and by relying on the view of the Judge who thought that the mitigating factors should have resulted in a lesser sanction, came to a decision that was perverse.

The EAT analysed the four reasons the Tribunal gave for reaching its conclusion, and ultimately decided that:

  • Just because Vaultex had the option of imposing a lesser sanction didn’t mean that dismissal was outside the band of reasonable responses.
  • The Tribunal did not analyse the dismissing officer’s thought process when considering the apology. The Tribunal had applied its own view and what they thought was going through Mr Bialas’s mind when he posted the offensive ‘joke.’
  • The Tribunal’s reasoning suggested that as long as a sanction was imposed, this wouldn’t undermine the employer’s policy. The Tribunal did not consider whether the appeal officer was entitled to believe that simply issuing a warning would send the wrong impression in relation to the employer’s commitment to this policy.
  • If an employee has relied on their apology, remorse or willingness to retrain in support of their plea for a lesser sanction where their conduct is something that a reasonable employer could dismiss them for, the Tribunal could find that the dismissal was unfair if the employer didn’t consider these factors. However, this does not imply that an employer will act unfairly if they consider these factors but nevertheless choose to dismiss the employee. In this case, the Tribunal considered these factors and placed dismissal outside the band of reasonable responses, but it did not explain why.
  • The Tribunal had not considered whether Mr Bialas’s long and unblemished service meant that it was not reasonably open to his employer to dismiss him for his conduct. The ‘zero tolerance’ policy made it clear that this sort of behaviour could be seen as so serious that it could result in dismissal. Just because the claimant had a clean record of long service, it didn’t mean that dismissal was outside the band of reasonable responses!

After considering all of the facts found by the Tribunal, the EAT concluded that no matter how harsh the Tribunal might think the decision, dismissal was within the band of reasonable responses open to the employer. Hence, the EAT held that the dismissal was not unfair.

If you have any questions on this or on any other area of Employment law, please get in touch with the Blackadders Employment team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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