Ms Fuller, a bursar at a school for children with special needs, objected to the way a child was being restrained, and refused to follow the head teacher’s instructions to leave the scene. Given that she had already had a verbal warning, she was suspended, and subsequently dismissed for gross misconduct. Ms Fuller brought a successful unfair dismissal claim in an employment tribunal. The Council appealed to the EAT, which allowed the appeal. In its view, the tribunal had impermissibly put itself in the place of the employer by deciding that it would not have dismissed for gross misconduct. Ms Fuller appealed.

The Court of Appeal allowed the appeal and restored the tribunal’s decision. It noted that, on appeal, an appellate court will err if it substitutes its own view of the reasonable employer’s response for the view formed by the tribunal, absent error of law or perversity on the tribunal’s part.

While a tribunal’s judgment must be read carefully, the reading must not be ‘so fussy that it produces pernickety critiques’. Over-analysis of the reasoning process, being hypercritical of the way in which the decision is written, and focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round, should all be avoided. The Court agreed that there were deficiencies in the tribunal’s judgement. But when read in a fair, reasonable, sensible way and in the round, it could be seen that the tribunal had applied the required correct objective assessment of the employer’s response.

The case serves as a useful reminder that the ultimate test in an unfair dismissal claim where reasonableness is concerned is whether the decision to dismiss fell within the band of reasonable responses that the employer could take in the circumstances. It is not for the tribunal nor the EAT to substitute its own view.