Within Reason

The concept of reasonableness underpins employment law.  For example:

• the Employment Rights Act 1996 states that the fairness of a dismissal depends on whether the employer acted reasonably or unreasonably in dismissing the employee. 
• An employer has to make reasonable adjustments to accommodate a disabled employee. 
• An employee who is made redundant will forfeit their right to a redundancy payment if they have unreasonably rejected an offer of suitable alternative employment.

Unfair dismissal

What is reasonable though?  In the context of unfair dismissal, the law states that you have to take account of “the size and administrative resources of the employer’s undertaking”.  However, it goes on to say that the fairness of a dismissal “shall be determined in accordance with equity and the substantial merits of the case” so there are clearly other factors to take into account. 

Many cases have referred to “the band of reasonable responses”.  That means that a tribunal will not ask whether they would have dismissed the employee.  Instead, they should ask whether dismissal (and the process leading up to it) fell within the band of reasonable responses open to a reasonable employer.  That is a very helpful concept for employers.  For example, if an employee who was dismissed for gross misconduct argues that they should only have received a final written warning, they are likely to lose because, if a final written warning fell within the band of reasonable responses, it is likely that dismissal would also have fallen within that band.

Reasonable adjustments

In the context of reasonable adjustments for disabled employees, the law used to set out a list of factors that would be taken into account.  Those included the resources available to the employer, any grants available, how effective the adjustment would be and the impact of the adjustment on the employees’ colleagues.  That list no longer exists but, in practice, an employment tribunal would still take those factors into account.  ACAS provide helpful guidance on this issue: https://www.acas.org.uk/reasonable-adjustments

Reasonableness in employment contracts

The concept of reasonableness often appears in employment contracts as well.  For example, you might state that the employee may be required to work within a reasonable distance or to carry out other reasonable duties.  Building that flexibility into the contract is helpful but, where possible, it would be better to be specific rather than have to debate whether a change is reasonable or not.  For example, you could say that the employee may be required to work within a 50 mile radius or, even, anywhere in the UK.

Conclusion

Although there are sometimes specific factors to take into account, whether something is reasonable or not is always open to debate.  What seems reasonable to you may not seem reasonable to your employee, and vice versa.  Usually, it boils down to balancing the employee’s needs against the needs of the business.  You will be in a much stronger position if you document the factors that you have taken into account in reaching your decision.  Of course, it is also very important to follow a fair process as well.

How We Can Help

We have decades of experience in advising on employment law so we can advise you on what would be considered reasonable by an employment tribunal.  All of the above issues would be covered under our retainer service, which provides unlimited advice on employment law issues.  Further details are here: https://www.keelys.co.uk/employment/  If you would like a quote for that service, please email proberts@keelys.co.uk