Should the Courts Reform the Range of Reasonable Responses Test (RoRR)

Aaron Baker's proposed alternatives to the Range of Reasonable Responses Test (RoRR)

Introduction

Section 98(4) Employment Rights Act 1996 (“ERA”) provides that a dismissal is unfair if, ‘having regard to the reason shown by the employer, the employer acted unreasonably in treating it as a sufficient reason for dismissing the employee.’ The statutory test of reasonableness was developed as an objective safeguard for employee rights and a standard through the ‘range of reasonable responses’ (RORR) test. The RORR is not from explicit statutory language but through judicial interpretations of s.98(4) ERA 1996. First articulated in Iceland Frozen Foods v Jones,[1] then affirmed in Post Office v Foley,[2] playing a crucial role in reinforcing this judicial interpretation. The use of the RORR test has come to dominate unfair dismissal jurisprudence.

The RORR test is important, although legal experts and several judges have strongly criticised it. The Employment Appeal Tribunal (“EAT”) attempted to challenge the strict interpretation of the RORR in Haddon v Van Den Bergh Foods Ltd.[3] While Aaron Baker says that the RORR "started life as a mistake and never recovered."[4] It changed the language of the law in a significant way.[5] This essay says that the RORR test is doctrinally wrong, too lenient on employers, and not in line with the goal of unfair dismissal law, hence it needs to be changed.[6] This paper will show that Baker's ideas are a strong alternative to the RORR test.[7]

The research will start by looking at the current law critically and using the main problems with the RORR test to support this point. Further, this research will talk about Baker's suggested alternatives and what they could mean for the law on unfair dismissal. Lastly, the essay will end by proposing we need to do more than just the RORR test, to get justice and protect workers' rights and dignity.

Critical Evaluation of the Current Law

The RORR test is not something that is required by statute.[8] It is something that is a judicial construct. Collins says it amounts to "nothing short of judicial legislation".[9] The RORR test is a big part of unfair dismissal law, but it has problems with how it is used and how it is understood.[10] The expectation is that for a dismissal to come after a fair investigation and process upon which the decision is made, in line with the ACAS Code of Practice[11] Hugh Collins argues this creates an "impossible standard to meet" and "the common law’s respect for the autonomy of managerial prerogative refusing to impose independent standards of just conduct".[12]

Judicial Gloss on Statutory Language

A long-lasting criticism of the RORR test is it adds unnecessary judicial interpretation to s.98(4) ERA 1996, which simply asks if an employer acted "reasonably or unreasonably" in dismissals.[13] Baker further contends that the RORR test "started life as a mistake and never recovered,"[14] as it misinterprets the statute to suggest a specific "employer reasonableness."[15] Baker believes this approach is "senseless" because it forces judges to uphold dismissals they find excessively harsh.[16]

Andy Freer and Wynn-Evans said respectively, judicial interpretation "says more than Parliament intended",[17] thereby warping the true standard of fairness by creating a "presumption that a dismissal was fair"[18] and endorsing existing managerial prerogative. Collins says that this change "from fairness…to a standard that reflects the potential responses of a range of reasonable employers"[19] makes it much harder for unfair dismissal law to set clear standards for good business practice. In essence, the RORR test is “not setting standards, it is merely following existing standards”,[20] thus offending rule-of-law principles by creating inconsistency between judicial discretion and statutory fairness. Davies and Freedland argue this doctrinal confusion ultimately "erode the objectivity of the notion of reasonableness".[21]

The "Substitution Mindset" Rule and its Impact

The "substitution mindset" rule, adds complexity to how Employment Tribunals (“ETs”) assess dismissal cases. This principle underscores that tribunals should focus on the employer's perspective rather than depend exclusively on their own judgment, particularly in light of Foley v. Post Office and London Ambulance Service NHS Trust v. Small.[22] The ET’s are responsible for finding out the facts and applying the law, it is almost hard to avoid having an impartial view about whether the employer's actions were reasonable. However, the RORR test, forces tribunals to disregard its own understanding of “‘reasonableness’—the standard for decision—cannot mean the same thing as what the judge thinks is reasonable”.[23] Thus compelling ET judges to “assume that ‘employer reasonableness’ tolerates more harshness than ‘reasonableness’”.[24]

This rule disproportionately benefits employers, as EAT appellate judges frequently overturn ET findings of unfair dismissal by claiming the tribunal substituted its own judgment, even if the ET explicitly applied the RORR test. Baker highlights this imbalance, and states that “judges with the highest tolerance for harsh discipline set the harshness standard for the rest of the tribunal judiciary”.[25] Brodtkorb says leading cases have never sufficiently explained the prohibition on substitution; it is far too simple for employers to claim substitution when an ET determines that a dismissal was unfair.[26] This confusion may stop ETs from calling dismissals unjust. Philippa Collins points out that the fear of a substitution mindset means that ETs often hesitate to point out that a less severe measure would have been appropriate.[27]

Despite efforts by the Court of Appeal in several cases,[28] [29] [30] [31] that attempted to weaken strict interpretations of the RORR and encourage deference to ET judgments, the fundamental pro-employer stance and the pervasive fear of substitution continue to persist. Arriva Trains Wales v. Conant[32] signalled a shift towards ET findings, even in cases of significant misconduct.[33]  This means that dismissal might be unfair but justified. Concerns remain regarding the return of the substitution mindset. Elijah, LJ has also said that he cannot like the "band approach” since it makes judges go against what they think is acceptable.[34]

RORR is Functioning as a "Perversity Test

Freer insists that the RORR test is ‘‘despite contentions to the contrary, [a test of]…Wednesbury reasonableness and perversity’.[35] This has led to interpretive concerns that the RORR test is a “judicial creation that substituted statutory clarity for doctrinal confusion”.[36] This injects deference into what appears on its face to be an objective test, favouring employer autonomy over tribunal discretion. While “judicial restraint in this context risks becoming abdication of responsibility’[37]. As stated previously, Baker argues that the RORR test was a mistake from its inception.[38] He contends that where the statute deems a dismissal unfair if an employer acted ‘unreasonably’, the RORR incorrectly interprets this as referring to a special kind of “employer reasonableness”[39]. Cumming-Bryce, J, in Vickers Ltd v Smith[40] said, the Tribunal's error lay in not only concluding that management's decision was wrong but also failing to ask whether it was "so wrong that no sensible or reasonable management could have arrived at the decision".[41] Lucy Vickers explicitly points out that the RORR test “borders on a test of perversity, and which undermines the effectiveness of the protection against unfair dismissal in all cases".[42] Foley v. Post Office said that the RORR is different from a perversity test, but critics say that in practice, "There is no practical difference."[43]

Michael Bennet says that the RORR test, thus, “can be argued that the tribunal is legitimating the actions of the worst employers”[44] by only reflecting existing standards instead of setting higher ones. This makes it much harder for the law to improve the norms of procedural and substantive fairness in situations of dismissal. A decision falling within the ‘range’ is essentially one that “no reasonable employer could have come to”, representing a very low bar. This means that tribunals are forced to ‘uphold decisions that fall beneath their own threshold of fairness’[45]. This creates a ‘floor’ of fairness below what the statute envisages and undermines employees’ rights. It is well within the authority of the tribunal to quash decisions that fall within the standard of unreasonableness[46]; it is therefore incomprehensible that a system that condones harsh but technically ‘legal’ dismissals is administered without proportionate protection for the employee.

The “Hypothetical Reasonable Employer”

The concept of the "Hypothetical Reasonable Employer" is a core, yet heavily criticised, element of the RORR test. Critics argue that the RORR forces ET judges to imagine a "notional range of reasonable employer responses" without any expectation that this range will be established by evidence.[47] This effectively requires judges to assume that "employer reasonableness" tolerates more harshness than their own understanding of what is reasonable.[48] An often-cited example of this problematic application is Saunders v Scottish National Camps Association,[49] where a dismissal based on the employee being homosexual was deemed fair, because a "considerable proportion of employers" would have taken that view, even when psychiatric evidence indicated no threat to children.[50] This demonstrates how the test defers to perceived industry practice, even when such practice might be based on flawed or prejudiced beliefs, thereby normalising harsher employer actions.

The issue is further compounded by the "breathtakingly diverse assortment" of individuals who fall under the umbrella of "employers," ranging from a Burger King shift manager to a university dean.[51] Very few of these individuals possess genuine expertise in "reasonable dismissals," as their primary livelihood involves activities other than terminating employment relationships, which typically represent a breakdown in their core business. Despite this lack of inherent expertise, the RORR requires judges to speculate, without evidence, what such a varied group might do and to elevate this hypothetical standard above their objective assessment of reasonableness.[52] This process, it is argued, results in an "artificially low standard of a fair dismissal", that undermines the statutory intent and makes it significantly harder for employees to succeed in unfair dismissal claims. Philippa Collins notes the RORR test "endorses the practices of management in all but the most unreasonable and irrational instances of abuse of managerial disciplinary power".[53]

No proportionality and integration of human rights

The RORR test faces significant criticism for its failure to integrate principles of proportionality and human rights scrutiny adequately. Philippa Collins argues that the RORR offers "inadequate protection to the human rights of workers".[54] She contends that the standard of fairness applied by tribunals is "insufficient to protect the human rights of workers in a manner consistent with the approach of the Strasbourg Court".[55]

Aaron Baker highlights that proportionality demands "objective questions" which are "completely incompatible with the ‘standard of the reasonable employer’ and the RORR".[56] He suggests that “massaging the RORR” will not resolve its inherent doctrinal confusion.[57] While courts, as seen in Turner v East Midlands Trains Ltd,[58] have affirmed the RORR's compatibility with human rights legislation, academic and judicial discontent persists, with figures like Lady Hale indicating that the Supreme Court may be more inclined to evaluate what is reasonable based on the tribunal's judgment and expertise, rather than just whether the dismissal was a reasonable response by the employer. Given the inconsistency between the tribunals' interpretations and the attempt to eliminate the RORR in Haddon[59], it emphasises the unease with the test and its interpretation; therefore, clear guidelines as recommended by Baker would provide judges with a clear standard based on proportionality jurisprudence.

Lucy Vickers has also extensively discussed unfair dismissal and human rights, underscoring these concerns.[60] The effect, according to critics such as Hugh Collins and Virginia Mantouvalou, is a "much stronger scrutiny of an employer’s decision to dismiss" that "cannot be replicated by the application of an unaltered ‘range of reasonable responses’ test".[61] Tor Brodtkorb also examines the development of the RORR and its impact. This consistently leads to tribunals showing "undue deference to the employer’s perspective" and a failure to protect fundamental rights effectively.[62]

Inconsistency and Unpredictability

The RORR test has led to inconsistencies in ET decisions, resulting in unpredictability in unfair dismissal cases. For similar cases, different tribunals may reach different conclusions, which could lead to different outcomes for similar dismissals. Appellate courts, especially the EAT and the Court of Appeal, have made matters more complicated by regularly overturning ET rulings on the grounds of the so-called "substitution mindset." This creates a climate of uncertainty, making ETs more likely to find dismissals fair in order to avoid reversal. Since 25 June 2013, the EAT has been composed of a judge sitting alone by default, with discretion to sit with a panel; this discretion is currently exercised in approximately 15% of cases, which raises further concerns about consistency and the potential for a widened "band of reasonable responses".[63] These ongoing problems show how badly the UK needs to change its unfair dismissal laws, especially because new laws like the Employment Rights Bill are meant to safeguard workers and make things fairer.[64]

Aaron Baker’s Proposals for Reform

Adoption of Baker’s proposed recommendations in his article, for the replacement of the RORR test with a genuine, singular standard of reasonableness, would be a welcome improvement to tribunals. Baker proposes distinguishing between the “standard for decision”—the legal test for whether an employer acted reasonably or unreasonably—and the “standard of review”, which governs how tribunals should evaluate these decisions, including deference. He advocates for a clear decision norm unaffected by review standards.  Baker also suggests giving tribunals specific advice on how to conduct enquiries and when to defer to employers.  This approach should be based on proportionality, not ‘employer reasonableness’.[65] This approach should be based on principles of proportionality, rather than relying on the fictional concept of ‘employer reasonableness’.[66] This means for the ‘standard of review’, tribunals would return to the plain language of s.98(4) ERA 1996, i.e. did the employer act reasonably, full stop. This approach would empower tribunals to apply consistent and principled reasoning, rather than relying on hypothetical employer behaviour, and restore judicial responsibility and clarity in the application of employment law. Judicial restraint and deference can be achieved through clear instructions, rather than distorting the very definition of reasonableness.

Proportionality Jurisprudence

When considering the ‘standard of review’, Baker advocates for structured guidance for tribunals defining when and how to defer. This standard is inspired by the proportionality test in public law[67], which is established jurisprudence and is advocated over the RORR test[68].which seeks to identify the legitimate aim, necessity and balance of rights. This encourages judicial transparency, as each step is justified and avoids confusion between the standard for decision and the standard of review. The aim is to limit the judges review to a specific matter that requires their assessment (e.g. ‘on what specific matters should the court give more weight to the conclusions of the original decision-maker’),[69] for example this could be achieved by a new set of statutory instruments from Parliament, that specify the areas in which the judicial review is required. Further, Parliament could even amend the ACAS Code of Practice[70] to include targeted guidance on how tribunals should focus their inquiry, and where to give deference. Baker argues that ‘a structured balancing act is more transparent than fictional reasonableness’.[71]

Analogy with the Bolam Test

Another potential alternative, discussed by Baker and Brodtkorb, is the analogy with medical negligence cases, set out in Bolam v. Friern Hospital Management Committee[72] as modified by Bolitho [73] from medical negligence law.[74] The Beedell v West Ferry Printers Ltd[75] interpretation suggests that an employer's dismissal decision could be judged by whether it falls within "one of several possible standards of good management accepted within the business community".[76] The Bolitho modification would allow ETs, to examine the "comprehensible justifications", for a particular management practice, rather than simply accepting its existence.[77] This would raise the standard required for employers, enabling tribunals to scrutinise "harsh disciplinary codes or inflexible disciplinary practices" and offering dismissed employees a greater chance of success by protecting their dignity and autonomy.[78] Brodtkorb implies that this interpretation would probably need changes to the law or help from a higher court because it goes against current RORR rulings.

Strengths of Baker's Reforms

There are many advantages to Baker's reforms. By bringing the law closer to its intended purpose, they address the issues with the RORR test. They accomplish this by eliminating the "unwarranted gloss" that has altered the standard of law. By raising the bar, these changes would force businesses to dismiss employees more fairly and better protect their freedom and dignity. By giving ETs the authority to apply consistent, moral reasoning and set clear benchmarks for employer behaviour, it would increase judicial responsibility. Baker interprets Lady Hale’s comments in Reilly v Sandwell Metropolitan Borough Council[79] as an invitation for a Supreme Court challenge to the RORR. Baker would provide judges with a clear standard based on proportionality jurisprudence.[80]

Potential Challenges and Criticisms

But these planned changes come with certain critiques and problems. There is a risk that granting tribunals too much discretion could lead to judicial discretion and inconsistency, potentially resulting in forum shopping or even judicial activism, unless the reforms are tightly structured.[81] Freer has expressed concerns about inconsistency if RORR is replaced[82]. Concerns then arise about whether judges will be able to apply these new changes correctly, which could make the court system even less predictable. From the point of view of an employer, these changes can be opposed because they remove the "band of reasonable responses," which makes business less assured and management less flexible. In the past, employer groups have fought against more job protections.[83] Collins and Mantouvalou believe getting rid of RORR could lead to "accusations of a tribunal free-for-all."[84] Lastly, for the changes to be politically and legally sound, they need to find a balance between justice and "practical workability",[85] taking into account the possibility of "excessive litigation or defensive HR practices."[86]

Conclusion

The RORR test in UK unfair dismissal law is deeply flawed, being a "judicial creation" that forces ETs to lower standards. It acts as a "perversity test" legitimising poor employers, and its lack of proportionality inadequately protects worker and their rights. Aaron Baker proposes a solution: distinguishing the understanding of the "standard for decision" (s.98(4) ERA), from the "standard of review", using proportionality jurisprudence for a "transparent" "structured balancing act".[87] A judicial shift, ideally by the Supreme Court, is urgently needed to replace this doctrinally confused test and strengthen employee rights.

Footnotes

[1] Iceland Frozen Foods Ltd v Jones [1983] ICR 17 (EAT)

[2] Foley v Post Office [2000] ICR 1283

[3] Haddon v Van den Bergh Foods Ltd [1999] ICR 1150 (EAT)

[4] Aaron Baker, 'The "Range of Reasonable Responses" Test: A Poor Substitution for the Statutory Language' (2021) 50(2) Industrial Law Journal 226, pp.226 and 262

[5] (n 4) p. 229

[6] (n 4) p. 263

[7] (n 4) pp.253-262

[8] Wynn-Evans, Charles, ‘Harsh but Fair—The ‘Range of Reasonable Responses’ Test and the ‘Substitution Mindset’ Revisited: Newbound v Thames Water Utilities Ltd’ (2015) 44(4) Indus LJ 566, p. 570

[9] Collins, P. M. Iceland Frozen Foods Ltd v Jones (1982): Fairness, Forty Years On. In Landmark Cases in Labour Law (1 ed.). (Landmark Cases), (Hart Publishing, 2022) p.164

[10] Brodtkorb, Tor, ‘Judicial Reform of Unfair Dismissal Law: Recent Developments in the Range of Reasonable Responses’ (2014) 25(2) King's Law J, 201-222, p. 215

[11] Advisory, Conciliation and Arbitration Service (ACAS), Code of Practice on Disciplinary and Grievance Procedures (2015), http://www.acas.org.uk/index.aspx?articleid=2174  accessed 10 June 2025

[12] H. Collins, Justice in Dismissal (Oxford: OUP,1993) 38–9

[13] (n 4), p.263

[14] (n 4), pp. 226 and 262

[15] London Sovereign Ltd v Gallon UKEAT/0333/15/LA, (Transcript) 13 May 2016 at 32-33

[16] (n 4), p. 262

[17] (n 10), p.204

[18] (n 8) p.571

[19] H., Collins, Justice in Dismissal: The Law of Termination of Employment (Oxford, Oxford University Press,1992) 32 – 40, cited in Collins, P. M. Iceland Frozen Foods Ltd v Jones (1982): Fairness, Forty Years On. In Landmark Cases in Labour Law (1 ed.), (Landmark Cases), (Hart Publishing, 2022), p.159

[20] M., Bennet, Interpreting unfair dismissal and redundancy payments law: the judicial reluctance to disapprove employer decisions to dismiss’, (2002) 23 Statute Law Review, pp. 135-42.

[21] (n 10). p.442

[22] London Ambulance Service NHS Trust v Small UKEAT/0395/07/MAA; and London Ambulance Service NHS Trust v Small EWCA Civ 220

[23] (n 4), p.257

[24] (n 4), p.263

[25] (n 4), p. 248

[26] (n 10), p.445

[27] (n 9), p.170

[28] Sarkar v West London Mental Health NHS Trust 2010 EWCA Civ 289

[29] Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

[30] Fuller v The London Borough of Brent [2011] EWCA Civ 267

[31] Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63

[32] Arriva Trains Wales v. Conant [2011] UKEAT 0043_11_2211

[33] (n 10), p. 218

[34] Small v London Ambulance Service [2009] EWCA Civ 220

[35] Freer, A., ‘The range of reasonable responses test – from guidelines to statute’’, (1998) 27(4) Industrial

Law Journal, 335-42, p.340

[36] (n4) at 263.

[37] H Collins, Justice in Dismissal: The Law of Termination of Employment (Oxford: Oxford

University Press, 1992) 272 at 29.

[38] (n 4), p.227

[39] (n 4), p.263

[40] Vickers Ltd v Smith [1977] IRLR 11, at 2

[41] Jackie Davies, 'A Cuckoo in the nest? A “range of reasonable responses” justification and the Disability Discrimination Act 1995' (2003) 32 ILJ 164, p.173

[42] Vickers, Lucy, 'Unfair Dismissal and Human Rights' (2004) 33 Indus LJ 52, p.58

[43] (n 4), p.239

[44] (n 10), p.442

[45] Phillippa M Collins, ‘Finding fault in the law of unfair dismissal: the insubstantiality of reasons for dismissal 2022, Industrial Law Journal 51(3) 598-625, p.604

[46] Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 [1]

[47] (n 4), p. 227

[48] (n 4), p.234

[49] Saunders v Scottish National Camps Association [1981] IRLR 277 at 8

[50] (n 4) p.240-241

[51] (n 4) p.242

[52] (n 51)

[53] (n 80), p.571

[54] Collins, P. M., ‘The Inadequate Protection of Human Rights in Unfair Dismissal Law’ (2018) 47(4) Industrial Law Journal 504, p.18

[55] (n 54), p.15

[56] (n 4), p.251

[57] (n 4), p.252

[58] Turner v East Midlands Trains Ltd EWCA Civ 1470, ICR 525

[59] Haddon v Van den Bergh Foods Ltd [1999] ICR 1150 (EAT)

[60] Vickers, ‘Case Comment: Unfair Dismissal and Human Rights’ (2004) 33 ILJ 52, p.53

[61] (n 54), p.18-19

[62] Philippa M. Collins, The Protection of the Human Rights of Workers through the Law of Dismissal (DPhil thesis, University of Oxford 2018), p.126

[63] Senior President of Tribunals, ‘Consultation – panel composition in the Employment Tribunals and the Employment Appeal Tribunal’ (Judiciary.uk, February 2023), para 12, https://www.judiciary.uk/wp-content/uploads/2023/02/ET-EAT-Panel-composition-consultation.pdf accessed 14 August 2015

[64] Jodie Milner, ‘Labour’s Employment Rights Bill: A new approach to the regulation of work?’ (2024) Political Insight 12; and J. R. Shackleton, ‘Liberating the labour market: How reforming employment regulation can boost British growth’ (IEA Discussion Paper, No. 139, Institute of Economic Affairs (IEA) 2025).

[65] (n 4), (abstract), 241–243

[66] Aaron Baker, 'The "Range of Reasonable Responses" Test: A Poor Substitution for the Statutory Language' (2021) (n4) p. 229

[67] Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

[68] Turner v East Midlands Trains Ltd EWCA Civ 1470, ICR 525

[69] Pham v Secretary of State for the Home Department [2015] UKSC 19

[70] (n 11)

[71] (n4) p.229

[72] Bolam v. Friern Hospital Management Committee [1957] 2 AER 118, QB

[73] Bolitho v. City and Hackney Health Authority [1998] AC 232, HL

[74] (n 4), p.241

[75] Beedell v West Ferry Printers Ltd [2000] UKEAT/135/00

[76] (n 10), p.431

[77] (n 10), p.445

[78] (n 10), p.445

[79] Reilly v Sandwell Metropolitan Borough Council

[80] (n 4), pp. 240–247

[81] A, Freer, ‘The Range of Reasonable Responses Test – From Guidelines to Statute’ (1998) 27 ILJ 335, p.342

[82] (n 79) p. 348

[83] K., D., Ewing & John Hendy, 'Unfair Dismissal Law Changes - Unfair' (2012) 41 Indus LJ 115, p.115

[84] Hugh Collins and Virginia Mantouvalou, ‘Redfearn v UK: Political Association and Dismissal’ (2013) 76 MLR 909 p. 921

[85] Philippa Collins, Putting Human Rights to Work: Labour Law, The ECHR, and The Employment Relation (Oxford University Press 2022) pp, 363-366

[86] Simon Deakin and Gillian S Morris, Labour Law (6th edn, Hart Publishing 2012) p.100-120

[87] (n 4) pp.253-262

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