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British Leyland UK Ltd v Swift [1981] IRLR 91 (CA), Lord Denning MR):

British Leyland UK Ltd v Swift [1981] IRLR 91 (CA), Lord Denning MR):
[11]… ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.’

Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672 (EAT), Morison J:

‘[26] …in some marginal cases, the tribunal might well consider that a dismissal by the particular employer was reasonable even though another reasonable employer might not have dismissed. The mantra ‘the band or range of reasonable responses’ is not helpful because it has led tribunals into applying what amounts to a perversity test

… was not its purpose. The moment that one talks of a ‘range’ or ‘band’ of reasonable responses one is conjuring up the possibility of extreme views at either end of the band or range. … Dismissal is the ultimate sanction. There is, in reality, no range or band to be considered, only whether the employer acted reasonably in invoking that sanction. Further, the band has become a band or group of employers, with an extreme end. There is a danger of tribunals testing the fairness of the dismissal by reference to the extreme.’

‘[31] The reference to ‘equity’ in s.98(4) requires at the least a consideration of the case from the employee’s perspective. How serious was his failure to return to work for a short time after drinking at a party organised by his employers, when his absence made no difference to the factory output? Even if the instruction was reasonable, why was it reasonable to dismiss him?’

(ii) Facts discovered after dismissal

An employer cannot rely of facts discovered after the dismissal Devis v Atkins [1977] ICR 662 (HL)

Cf Wrongful Dismissal, Boston Deep Sea v Ansell (1888) 39 CHD 339 (Ch)
(b) Size and administrative resources (s. 98(4)(a))

Tiptools Ltd v Curtis [1973] IRLR 276 NIRC (National Industrial Relations Court)
Blackburn v Maconde (UK) Limited (2002) EAT/0722/02/ZT

(c) Equity and the substantial merits of the case (s. 98(4)(a))

Post Office v Fennell [1981] IRLR 221 (CA) Brandon, LJ: ‘[12]…It seems to me that the expression ‘equity’ … comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment’

Haddon v Van Den Bergh Foods Ltd (above)

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