Case Study: Vaultex UK Ltd v Bialas

The case of Vaultex UK Ltd v Bialas is a useful reminder of how tribunals can fall into the trap of substituting its own view of an appropriate sanction for that of the employer.

The Facts

The claimant was dismissed for posting a racist joke on his employer’s intranet, which was used by all of its employees. The claimant’s post was reported for racism a few minutes after it was created.

As a result of the post and the report, a disciplinary investigation was opened into the claimant. The claimant had a long, unblemished service record and apologised profusely for his actions. Nevertheless, his employer operated a zero-tolerance policy in respect of discriminatory language and following a disciplinary process, the claimant was dismissed on the grounds of gross misconduct.

The claimant brought a claim of unfair dismissal before the employment tribunal.

The employment tribunal found that dismissal was unfair on the basis that the sanction of dismissal was outside of the band of reasonable responses. The tribunal concluded that, given the claimant’s unblemished service record and his apologies, any sanction above a final written warning fell outside the band of reasonable responses.

The respondent appealed to the EAT on the grounds that, notwithstanding a correct self-direction as to the law, the tribunal had not applied the band of reasonable responses approach to the sanction, but had substituted its own view of the appropriate sanction for that of the employer and/or it had reached a decision that was perverse.

The EAT concluded that the tribunal did allow its decision to be influenced by the judge’s own view of the gravity of the conduct having regard to the various mitigating factors that the claimant had relied upon. Accordingly, the appeal was upheld, and a decision substituted that the dismissal was fair.

Takeaways

This case provides a useful analysis on the “band of reasonable responses” test and acknowledges that employers have a wide discretion when deciding on appropriate sanctions. In particular:

• In a case where the conduct is something for which a reasonable employer could, in principle, dismiss, but the employee has relied on their apology, expression of remorse or a willingness to retrain in support of their plea for a lesser sanction, then it may be open to a tribunal to find that, if these things were not fairly considered by the employer, then that affects the fairness of the dismissal. But that does not mean that an employer which is found to have considered such matters will necessarily act unfairly if, having taken them into account, it nevertheless decides to dismiss. Here, these factors were considered, but if the tribunal considered that they placed dismissal outside the band of reasonable responses, it did not explain why.
• The fact that the employer had the option of imposing some lesser sanction (such as a final written warning) did not mean that the option of dismissing was outside the band of reasonable responses.
• The tribunal’s reasoning suggested that, as long as some sanction was imposed, this would not undermine the employer’s policy. This supported the contention that the tribunal did not consider whether the dismissing officer was reasonably entitled to take the view that to give only a warning would send a wrong signal in relation to the employer’s commitment to this policy.
• The tribunal had not addressed the question whether the Claimant’s long unblemished service meant that it was not reasonably open to his employer to dismiss him for this conduct. As to that, the policy made it clear that conduct of this sort was considered to be potentially so serious that it could result in dismissal for a first offence. In circumstances where the post was visible to the entire workforce, it was not reasonably open to the tribunal to conclude that the Claimant’s prior clean record of long service meant that dismissal was outside the band of reasonable responses.

Markus Schober is a solicitor in our employment law team.