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Easy as pie – banoffee and the band of reasonable responses

It is well known that for a dismissal to be fair, it must fall within the band of reasonable responses open to an employer. The Employment Tribunal case of Santos v Disotto Foods Limited is a recent example of a successful claim of unfair dismissal on this basis.

Disotto employed Mr Santos as a warehouse manager. Towards the end of a shift, at about 10pm, Mr Santos received an instruction to load banoffee pies onto a delivery van. As he was unsure of the correct van to load, Mr Santos decided to wait until the following morning to check this point. At the start of his next shift, at around 6.30am, he loaded the correct van and the pies were delivered.

Despite the pies being delivered, Disotto raised disciplinary proceedings against Mr Santos and eventually dismissed him. This was on the basis that by waiting until his next shift before loading the pies, Mr Santos had failed to follow a management instruction. Mr Santos raised a claim for unfair dismissal after his disciplinary appeal was unsuccessful.

The tribunal held that Mr Santos’ dismissal was unfair as it fell outside the band of reasonable responses, and awarded him £59,000 compensation. The tribunal noted that Mr Santos was tired when he received the instruction, having worked for at least 13 hours. It also observed that because Mr Santos loaded the pies before the van left the following morning, no harm had been caused to Disotto’s business.

This case is an interesting illustration of the band of reasonable responses test. Although the band can be thought of as “employer-friendly” as it widens the scope for a dismissal to be reasonable, a tribunal can still apply the test in favour of an employee.

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