So Who’s Not Reasonable?
Is your response reasonable?
How often does it occur that you think you’re acting entirely reasonably, but bizarrely someone else thinks you’re well out of order and your response isn’t reasonable? Quite often, I suggest.
As with normal life, work situations are no different. A manager trying to get his team to improve can be perceived as overbearing or even bullying; but is he just doing his job, or is he acting unfairly? Is it fair to sack someone for drinking whilst at work, or should he be given one last chance and a final written warning? It depends on all sorts of things, of course, but people have different opinions.
To get round this problem, employment law has developed the concept that there is a “range of reasonable responses” when it comes to assessing whether or not an employer has acted fairly. This is designed to force an employment judge or tribunal to consider whether an opinion other than their own is reasonable.
But does this get us any further forward? If you think that a different opinion to yours could still be viewed as reasonable, it follows you think both opinions are more or less on the same page.
Where this leaves us is that employment tribunals and judges only have to say they considered whether a different view to their own was “within a range” of potential reasonable views, conclude that it was not and that therefore it was unfair.
But when it comes to their reviewing their own decisions on appeal, the judges turn things around: it has to be so gobsmackingly wrong that no other judge could (reasonably) come to the same conclusion. In other words, it has to be a “perverse” decision.
But the perversity test is effectively the same as the “range of reasonable responses” test, just phrased differently. If a decision is not within the range of reasonableness or fairness, it logically follows that it must be obviously unreasonable or unfair. How is this different to a decision being perverse? It isn’t.
But the consequences are very different: we are all far more likely to say that an opinion or action other than our own is unreasonable than to say it is perverse. Judges are no different, and surprise surprise, they are far more prone to deciding the actions of others as being outside the “range” of reasonableness – and therefore unfair – than appeal judges are to overturn decisions of tribunal judges for being perverse.
So why is it one rule for them and another for us? Well, if employment judges could only overturn decisions or actions of others because they were perverse, there would be much less for them to do. Conversely, if their decisions could be appealed because they were outside “a range” of reasonable decisions, there would likely be far more appeals.
Or am I being unreasonable?
If you need guidance on this complex issue of reasonable response, do get in touch jj
© Thornber Employment Law Ltd