It is now time to talk about the range of reasonable responses, a frequently misunderstood concept. As the Court of Appeal made extremely clear in HSBC v Madden, ”there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response.” To put it another way, the word ’reasonable’ means the same as within the range of reasonable responses, which is not a gloss on the literal reading of the statute. It is simply a reflection of the reality that there is frequently more than one reasonable solution. It would be a gloss on the statute to say that there is always only one solution in every case.

It might be objected that the word ‘reasonable’ appears elsewhere in employment legislation, such as in discrimination law, where reasonable adjustments must be made for disabled people and, previously, justification for indirect discrimination was required to be reasonable. There is no reasonable range in these cases but this is because an employer is expected to keep disadvantage to a minimum. Because there is just one factor to weigh in the balance, it is feasible to expect an employer to adopt the best solution. In an unfair dismissal situation, there are many considerations and it is less clear which rights of the employee are to be given the most weight. As a result, there will be multiple reasonable options.

I now want to return to Sharp. Having suggested in an earlier post that the second part of the test does not apply in the same way when the implied term is engaged, I nevertheless think that it is helpful to examine what it says about reasonableness. It states that whether there is a constructive dismissal depends upon whether there has been a fundamental breach of contract, not whether an employer has behaved unreasonably. In the case of an express breach, it follows that there can be a constructive dismissal even where an employer is found to have acted reasonably (Tapere is an example of this).

This is all very well but Sharp prefers the contract test because, otherwise, it suggests, constructive dismissal can be found on whimsical grounds. Therefore, in most cases, the test is higher than that of a reasonableness test. I would suggest that this will always be so for a breach of the implied term, not properly considered in Sharp. As ‘reasonable’ means within the range of reasonable responses and the action of an employer must be worse than unreasonable to make out a breach of trust and confidence, it is correct that a finding of such a breach arising from an action in the range of reasonable responses would necessarily be perverse. This is important because it is difficult to overturn findings on perversity grounds but it is necessary to establish a basis for challenging them to ensure consistency in the law.