Judgment approved by the court Vaultex UK Ltd v Bialas 50. The Respondent’s procedure was generally procedurally fair though. No realistic challenge is made to the procedure. 51. This brings me to the ultimate question of whether the dismissal was within the band of reasonable responses. In considering this I do not substitute my judgment for that of Mr Babbage. Equally, I do not ask whether the Respondent merely could have imposed a lesser sanction, or whether another sanction was more appropriate. I also do not consider the findings of fact that I have made which are relevant to the question of contributory fault. Nor do I need to consider facts outside Mr Babbage’s knowledge, in particular which section of the website the ‘joke’ came from. 52. I find that the dismissal was outside the band of reasonable responses. This is for the following reasons. 53. Firstly, it is important to note the racist nature of the post and the impact that this had on the Respondent: a member of staff complained about the post and the misconduct itself had the potential to undermine the appearance of the Respondent’s commitment to EDI. In this regard, the Respondent also operated a zero-tolerance policy. But that did not mean that there was a choice between on the one hand simply doing nothing (which would involve undermining the Respondent’s campaign and reputation), and on the other hand dismissing the Claimant. There was a middle ground open to the Respondent: a lesser sanction. The Respondent did not have to dismiss. Of course, that does not alone mean that the Respondent was not entitled to dismiss as a reasonable response. 54. Secondly, the Respondent, and Mr Babbage in particular, was aware that the Claimant had offered full apologies and offered to undertake retraining. Whilst he may not have had the fundamental knowledge to understand why the joke was racist, he did understand, having been told, that it was, and as such was taking actions not to repeat his behaviour. It could not have escaped Mr Babbage’s attention that the apology letters were heartfelt and that the Claimant showed insight into the impact of his actions. 55. Thirdly, the Claimant had a previously unblemished record and long service. In this regard I reject any suggestion, intimated by the Respondent, that the Claimant not having read a policy and ticking a box on Workvivo to say he had done so was a blemish on his record at all. In any event, it cannot have been taken into account when the Claimant was dismissed as it is a matter that came out in evidence for the first time at the hearing. 56. Fourthly, it was obvious to Mr Babbage, which is why he said it in the meeting, that the Claimant did not give proper thought to the actions. That is equally evident from the introduction to the joke: the Claimant was putting it in the context of the EDI campaign. It would be sheer stupidity to put the “joke” in the context of the EDI campaign, and publish the joke to the whole company, knowing or believing it was racist. It cannot and did not escape Mr Babbage’s attention that some level of misunderstanding, rather than malice was involved. 57. Against this background, any sanction more serious than a final written warning was outside the band of reasonable responses. No reasonable employer would have taken the decision to dismiss. Rather, any reasonable employer, possessed of the facts available to Mr Babbage, would have imposed a lesser sanction such as a final written warning.” 15. In the final section the tribunal stated that the claimant was partly at fault for his dismissal by his conduct, which, in part, caused or contributed to it. It was just and equitable to reduce both the basic and © EAT 2024 Page 8 [2024] EAT 19