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Tribunals should not substitute their own decision

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Tribunals should not substitute their own decision for that of the employer, a decision may be harsh, but if an Employer can evidence their actions were within the band of reasonable responses, the dismissal should be ruled as fairVaultex UK Ltd v Bialas [2024] EAT 19

Mr Bialas posted a racist joke on the Intranet which was reported for racism a few minutes after it was created, and then removed by the IT department. During a disciplinary investigation and hearing into the conduct, Mr Bialas offered profuse apologies and asked for retraining. He maintained that he did not realise that the post was racist.

The company had a "zero tolerance" policy in respect of discriminatory language. The disciplinary hearing chair took account of Mr Bialas's long service, exemplary record and his remorse. However, he felt that a written warning would conflict with Vaultex's zero tolerance approach, and its commitment to equality, diversity and inclusion (EDI).

Mr Bialas brought a claim against the company for unfair dismissal. The tribunal ruled that the dismissal was outside of the band of reasonable responses, for the following reasons:

  • The racist nature of the post and its potential impact on Vaultex's commitment to EDI;
  • The fact that the "zero tolerance" approach did not necessarily mean that dismissal was the only option: there was a middle ground, which would have been a lesser sanction;
  • Mr Bialas had offered sincere apologies and expressed a willingness to undergo diversity training, demonstrating insight into the impact of his actions. While he may not have understood why the "joke" was racist, having been told that it was, he was making attempts not to repeat the behaviour;
  • Mr Bialas had an unblemished record and long service. The fact that he had not read the EDI policy which had to be acknowledged by all users of the intranet did not have any bearing on this and should not be regarded as a blemish; and
  • The lack of proper thought on the part of Mr Bialas, and the context in which the "joke" was presented, suggested a level of misunderstanding rather than malice.

The compensation awards were however reduced by 25% as the tribunal found that the Claimant had contributed to the dismissal.

The company appealed the decision and the Employment Appeals Tribunal ruled that the tribunal had substituted their own decision to the outcome of the disciplinary hearing, rather than applying the band of reasonable responses test to the decision Mr Bialas’ employer had reached.

Having considered all the facts found by the tribunal, but particularly the findings as to the contents of the post, where it was posted and the nature and content of Vaultex's policy on discriminatory language, the EAT concluded that any tribunal ought to have concluded that dismissal, however harsh the tribunal might think the decision, it was within the band of reasonable responses open to the employer.