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Introduction The current state of the law on the termination of employment contracts and particularly in relation to unfair dismissal claims suggests that there is a much greater emphasis on reviewing the rationality of the employers decision to dismiss an employee over any actual protection of workers dignity. Normatively is it desirable to protect workers dignity in this field and the introduction of convention rights through the Human Rights Act 1998 has certainly increased the protection and awareness of this dignity. However overall and historically there is a greater focus on the rationality of the decision by the employer with many cases falling under the heading of harsh but fair1. Section 98 (4)(a)2 of the Employment Rights Act (ERA) states that, in deciding the validity of a decision to dismiss, the court must take into account whether the employer has acted reasonably or unreasonably in dismissing the employee and, for greater guidance, the test of range of reasonable responses (RORR) was dreamt up which has interpreted the statute far too broadly.

The current state of the law Range of Reasonable Responses Test Throughout the history of employment law in the United Kingdom there has been a much greater emphasis on the rationality of the decision to dismiss and the power exercised by the employer with courts placing less emphasis on the dignity of the workers in such dismissals. An extreme version of the RORR was initially formulated in Vickers Ltd v Smith3 which basically posited that a dismissal will only be illegitimate where the managements decision was so wrong that no sensible or reasonable management could have arrived at the same decision (this is akin to the Wednesbury unreasonableness test in public law). Browne-Wilkinson J tempered this approach slightly in Iceland Frozen Foods Ltd v Jones4 which sets out the basic tenets of the test, basically that it is the reasonableness of the employers conduct which must be taken into account and not the substituted values of the tribunal and that a spectrum of reasonableness exits. The RORR has given employers a huge amount of latitude when dismissing employees; for example in HSBC v Madden5 the grounds a worker was dismissed on were found to be incorrect yet the decision to dismiss was still upheld as a result of it being in the range of reasonable responses available to the employer. The dignity of the employee in this case was barely considered with the court placing much greater focus on the reasoning of the employer compared to the consequences such an unfair dismissal would have on the employees dignity and life. We can see the scope of power this gives to employers with Denning highlighting, one employer might reasonably take one view: another quite reasonably take a different view. Both views may be quite reasonable.6
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[1988] I.R.L.R. 512 (E.A.T.). Employment Rights Act 1996 3 [1977] IRLR 11 EAT 4 [1983] ICR 17 5 [2000] ICR 1283 (CA) 6 [1981] IRLR 91

This imbalance of focus on the rationality of the exercise of employers power has resulted in many decisions falling under the heading coined in Mathewson v R.B. Wilson Dental Laboratory as harsh but fair7 with Collins reiterating that provided an employer acts within that range of reasonable decisions, the dismissal can be harsh but fair.8 This seems an entirely wrong approach to employment law when one of its main functions is to redress the inequality in bargaining power between a powerful employer and a vulnerable employee. Although the RORR acts only as a set of guidelines when defining reasonable grounds contained in s 98(4) of the ERA, many judges have discussed it in unequivocal terms such as Judge Hull advocating that it must9 be applied. Mantouvalou highlighted that at present, the range of reasonable responses test hardly weighs the interests of the employee in job security in the balance at all. 10 It is an incredibly one-sided rule which gives little respect to workers dignity and rights.

Divergence from wording of statute The major cause of this imbalance is the interpretation of section 98 (4)(a) as signifying the RORR. Wells v Derwent Plastics discusses the inappropriate nature of adding frills11 to an intelligible and unambiguous piece of statute and Collins goes so far as to say the effect of this gloss on the statute removes much of the sting of the legislation. 12 The gloss on the statute gives the employer much more freedom meaning they do not even have to reach normal standards of disciplinary procedure and goes against the balanced approach intended by the act. Furthermore it directly goes against workers dignity by not according them the level of rights that they rightly deserve. The extreme interpretation of the act also goes against the condition in section 98 (4)(b) that the decision of reasonableness shall be taken in accordance with equity and the substantial merits of the case13. It is submitted that this cannot be the case with a dominant perversity test (the RORR) and this imbalance and unworkability was highlighted in Dobie v Burns International Security Service where Lord Donaldson felt an important factor, which was not taken into account, was whether there would be any injustice to the employee and the extent of that injustice14. This approach signals a much greater emphasis on workers dignity and is a markedly more attractive line than the RORR. However unfortunately the current line favored by the courts is the range test which does little to protect dignity.

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[1988] I.R.L.R. 512 (E.A.T.) H. Collins, Justice in Dismissal (Oxford: Oxford University Press, 1992) 1 9 [1997] EWCA Civ 2825 10 Collins and Mantouvalou, Redfearn v UK: Political Association and Dismissal (2013) Modern Law Review, Vol. 76, Issue 5 11 [1978] EAT 1978 12 H. Collins, Capitalist Discipline and Corporatist Law (1982) 11 Industrial Law Journal 78. 13 Employment Rights Act 1996 14 [1984] IRLR 329 CA

The influence of the Human Rights Act (HRA) 1998 The introduction of the convention rights into UK law in 1998 increased the protection of workers dignity that courts would give in the termination of contracts. Indeed Mantouvalou stated that before the incorporation of the HRA into domestic law, the protection of private life in employment was wanting 15 . The major improvement is that when human rights law is involved in a discussion of fairness, an added element of proportionality is involved. The decisions in Pay v UK16 and X v Y17, while both still decided for the employer, demonstrate that the new approach means that the test of fairness in dismissal must be carried out in light of the convention rights. The European Court of Human Rights found that restriction of article 8 in Pay v UK was in accordance with law, pursuant of a legitimate aim and also proportionate which is a far more stringent test than the RORR. Under the RORR test the decision in Pay v UK would simply have fallen into the scope of reasonable responses by an objective employer yet the presence of the convention rights redressed the balance slightly and placed more of an emphasis on workers dignity. The test of proportionality means that, before dismissing an employee for something that involves their conventions rights, it would be proportionate for the employer to consider suitable alternatives. For example in Pay v UK the court toyed with the idea that it might have been more proportionate for the employer to have taken less severe measures, short of dismissal.18 There are those who still see more merit in the RORR with regard to convention rights with Elias LJ in Turner v East Midlands Trains Ltd19 stating that Strasbourg adopts a light touch when reviewing human rights in the context of the employment relationship. It may even be that the domestic band of reasonable responses test protects human rights more effectively.20 However this seems a fundamentally flawed view, as it is evident that the RORR does not protect workers rights adequately and the convention rights provide much better safeguards when it comes to workers dignity. The question that this view creates is whether the test of fairness in the law of unfair dismissal in the UK provides an appropriate framework by which to assess the proportionality of the dismissal when Convention rights are implicated21. In its current form the framework in the UK is unable to accommodate a proportionality requirement as the effect of the RORR means that proportionality of the disciplinary punishment is not considered. If the courts and tribunals think that some employers would have used the toughest sanction proportionality is rendered irrelevant.

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Mantouvalou, Human rights and unfair dismissal: Private acts in public places [2008] Modern Law Review 71(6) 16 [2009] 32792/05 (ECtHR) 17 [2004] ICR 1634 18 Mantouvalou, Private life and dismissal (2009) Industrial Law Review 38 (1) 19 [2012] EWCA Civ 1470 CA 20 Ibid. 21 OpCit. No 9

Reform Such inadequacies in the current regulations concerning the termination of contracts of employment could be addressed by reform, which would place more weight on workers dignity. One suggestion would be, as previously insinuated, to get rid of the RORR and have a test of proportionality that would basically ask the question whether the employer was, by the dismissal, pursuing a legitimate objective and if they were whether the means adopted were proportionate, and required to achieve the object. A change of this sort would most likely require a redraft of the statute with a different emphasis from whether the employer acted reasonably or unreasonably. Another suggestion of reform by Freer22 relating to statutory change is for a more simplistic statutory definition of whether the dismissal was fair or not. However we must not forget that the current position of the law is not a true reflection of the wording of the statute and a better alteration could be to depart from the RORR entirely. This, combined with a proviso for the courts and tribunals to use their industrial knowledge and experience to define reasonableness, will create an effective check against arbitrary decision making and restore balance of fairness at work23. The RORR is the main problem and it has created a significant imbalance and it is submitted that the best reform would be to return to the wording of the statute (a position favoured by the courts in cases like Gilham v Kent Country Council24). A return to the original form of the legislation would rebalance the employer and the employee and be much fairer as a result.

Conclusion It is evident that the current state of the English law focuses on the rationality of the exercise of employers power and does not provide sufficient protection on workers dignity. This is primarily down to the range of reasonable responses test which accords far too much leeway to employers to dismiss their employees in a manner of their choosing. The Human rights Act 1998 has redressed the balance slightly by introducing more stringent tests on employers when their actions infringe the convention rights of their employees yet the general state of the law is still a concern. Reform is desperately needed in this area and it has been suggested that the best action would be to dispense of the RORR so that employers do not have such a broad right to dismiss workers flouting their dignity without sufficient accountability.

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Freer, The Range of Reasonable Responses Test From Guidelines to Statute (1998) Industrial Law Journal 27 (4) 23 Ibid. 24 [1985] ICR 233