Judgment approved by the court 31. Vaultex UK Ltd v Bialas Secondly, she noted that the tribunal had said at [57] that no reasonable employer would have taken the decision to dismiss and that any reasonable employer would have imposed a lesser sanction. That, she argued, showed that it had wrongly failed to consider what a reasonable employer could do. As Lord Denning MR said in Swift, stating that a reasonable employer “would” have considered a lesser penalty to be appropriate was an error, a point which had been made again by the Court of Session in Gair v Bevan Harris Ltd [1983] IRLR 368. 32. Ms Clarke then submitted that the four specific reasons set out by the tribunal for its conclusion that dismissal was outside the band of reasonable responses did not, on consideration, in fact properly support that conclusion. At most, it had canvassed considerations that might reasonably be considered relevant to the choice of sanction but not as putting dismissal outside the range of reasonable options. Further, they betrayed that the tribunal had in substance made the error of relying on its own view of how serious the claimant’s conduct was, rather than considering the view of the dismissing manager and whether that was reasonably open to him. We will consider that passage and the arguments in relation to it more closely shortly. 33. Ms Clarke’s submissions particularly relied upon the findings of fact made by the tribunal in the opening section of its decision, referring to the respondent’s policies. It was, she submitted, in principle open to this employer to decide how seriously it treated particular types of conduct in this area. The tribunal had found that this employer had, through its EDI campaigns and forums, its EDI policy, its disciplinary procedure and its anti-harassment and bullying policy, made it very clear how seriously it regarded conduct of the type at issue in this case; and that an employee who engaged in such conduct could be dismissed for a first offence. The tribunal had found that the claimant’s conduct was properly found by the respondent to have been in breach of those policies. The tribunal had also found as a fact that Mr Babbage had taken into account the claimant’s long service and prior clean record and expressions of apology and remorse, but he had also taken into account the impact which he considered © EAT 2024 Page 14 [2024] EAT 19