Was an employment tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses?

No, decided the Employment Appeal Tribunal (EAT) in the recent case of Vaultex v Bialas.

The Claimant posted a racist joke on the Respondent’s intranet. Clearly a very daft thing to do in 2024! The Claimant had a long and unblemished service record and apologised for his actions. However, the Respondent still dismissed the Claimant for gross misconduct.

The original employment tribunal which heard the case held that the Claimant had been unfairly dismissed. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed against the original tribunal’s decision.

The EAT held that the tribunal had substituted its own view for that of the Respondent (which is not allowed). The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. It therefore substituted a finding of fair dismissal.