Judgment approved by the court Vaultex UK Ltd v Bialas the speech of Lord Denning MR, in the Court of Appeal a few years later in British Leyland UK Ltd v Swift [1981] IRLR 91: “The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: ‘…a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate.’ I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.” 19. So, the tribunal should not find the dismissal to be unfair on the basis that it would have been a reasonable decision to impose a lesser sanction for the dismissal; that this is what some employers would have done; or that this is what the tribunal itself would have done. If the tribunal concludes that the dismissal was unfair because the tribunal would not itself have dismissed, then it commits the socalled substitution error of substituting its own view of the appropriate sanction for that of the employer, rather than taking a band of reasonable responses approach. 20. Next we turn to the role of the EAT. An appeal lies to the EAT on the basis that the tribunal has made an error of law. Its role is limited to that. It does not conduct a retrial or find facts. Further, where an employment tribunal has given itself a correct self-direction as to the law, and ostensibly answered the correct legal question in its conclusions, the EAT should be circumspect when invited to conclude that nevertheless the tribunal did not, in fact, take the right approach in substance. However, the making of such statements as to the law by the tribunal does not make its decision immune from such a challenge. 21. Challenges to the tribunal’s approach to the employer’s decision on sanction periodically come before the appellate courts. Of the several Court of Appeal authorities which have discussed the correct approach to such challenges, we were referred, in particular, to Fuller v London Borough of Brent [2011] EWCA Civ 267; [2011] ICR 806. In that case, the tribunal upheld the complaint of unfair © EAT 2024 Page 10 [2024] EAT 19