Blog

  • Home
  • Unfair Dismissal
  • Court of Appeal clarifies extent of employer’s knowledge in unfair dismissal cases
You Are Here:

Court of Appeal clarifies extent of employer’s knowledge in unfair dismissal cases

Posted on | Posted in Unfair Dismissal

In Orr v Milton Keynes Council the Court of Appeal held that when deciding whether it is reasonable to dismiss an employee, provided a fair and reasonable investigation has been held an employer cannot be deemed to have knowledge of all facts known to its employees. It is only the facts that are known to the decision maker that are significant in deciding whether a dismissal was fair. The Employment Tribunal should consider the reasonableness of the employer’s conduct, not the injustice to the employee.

The Council took disciplinary action against Mr Orr (a youth worker of Jamaican origin) in relation to 2 incidents: discussing a sexual assault contrary to specific instructions and being rude and aggressive during a discussion with his manager, Mr Madden. An investigation into the incidents was carried out and Mr Cove, a senior manager, dealt with the disciplinary hearing. Mr Orr did not attend the disciplinary hearing. Mr Cove decided that both incidents had occurred and that each of them constituted gross misconduct.

Mr Orr brought a claim for unfair dismissal and race discrimination. It became apparent during the Tribunal case that Mr Orr’s outburst had happened after Mr Madden had tried to reduce his working hours without his agreement. Mr Orr became upset and used Jamaican patois to which Mr Madden replied “you lot are always mumbling… I can’t understand a word you lot are saying”.
The Tribunal held that Mr Orr’s dismissal was fair and non- discriminatory despite Mr Madden’s comments amounting to direct race discrimination. At the time Mr Cove reached his decision to dismiss he had not known of Mr Madden’s comments as Mr Madden had not disclosed his behaviour to the investigation. The Tribunal also held that the reason for Mr Orr’s rude and aggressive behaviour during the discussion was Mr Madden’s attempt to reduce his working hours without his agreement.

Mr Orr appealed to the EAT, who upheld the tribunal’s decision. He subsequently appealed to the Court of Appeal. The Court of Appeal by a majority upheld the EAT’s decision that the dismissal was fair. They held that before reaching its decision to dismiss Mr Orr, the Council had taken all reasonable steps to acquaint itself of the relevant facts and had formed the view on reasonable grounds that he had behaved in a way that warranted his dismissal. Ultimately, the decision to dismiss Mr Orr fell within the band of reasonable responses.

Practical Tip
It is often the case with large employers, such as the Council, that managers have delegated responsibility for making decisions about employment matters. Consequently, it should only be the knowledge of the individual decision maker at the time at which the decision to dismiss is made that is pertinent. This knowledge should be held to be the “employer’s knowledge”. However, a fair and reasonable investigation does need to be carried out (as happened in this case) which would give the employee an opportunity to raise any mitigating factors, such as a manager’s behaviour. These were unusual circumstances in that Mr Orr had not attended either the disciplinary or appeal hearings to put forward his case and highlight Mr Madden’s behaviour.

If you require any specific advice in connection with the material contained in this bulletin, or on any other employment Law issues, please contact: Paul Chamberlain in Manchester on 0161 836 8864, Andrew Cross in
Liverpool on 0151 600 3062 or Kevin James in Preston on 01772 229847.

0

Leave a Reply

Your email address will not be published. Required fields are marked *

Latest Posts
04 Sep 2017

Get the best staff with flexible working

Flexible working brings a more diverse pool of candidates – and could they be so wrong they’re right, like chocolate covered pork scratchings? Honestly, it’s a thing!  Belgian chocolate pork scratchings – it works because it is like “salted caramel on steroids”. It’s that whole salt/sweet combo but taken to another level, you first get[…..]

Latest Posts
30 Aug 2017

Back to school, back to work – temping and part time jobs in Basingstoke

Summer came in like a lion and fizzled out like a camp fire made out of damp wood.  It appears that Autumn is upon us already. It definitely has its advantages other than the chance to kick our way through oceans of leaves & smell the woodsmoke of bonfires; it’s often the time to think[…..]

Latest Posts
17 Jul 2017

#ThisGirlCan? This girl did – inspiration from Jane Austen

”A large income is the best recipe for happiness I ever heard of”’ –  Jane Austen The 7th of July was the 200th anniversary of the death of Hampshire’s greatest author – Jane Austen.  Here was truly a woman ahead of her time.  In an era where very few women had the opportunity to vote,[…..]

Latest Posts
19 Jun 2017

Wote Street People get Pretty Muddy for Cancer Research

It all started 2 years ago, when Madelaine took part in the Brutal 10k as part of our 25th Anniversary celebrations (celebrations?? Well, we decided to raise money for Basingstoke Consortium as a way of celebrating). The rest of the team went along on a cold Saturday November morning to watch Mad go through hell.[…..]

Latest Posts
24 May 2017

Hello? Is it me you’re looking for?

There’s nothing more annoying than registering for job vacancies in Basingstoke with a recruitment agency and then not hearing anything.  Why does this happen? Distractions.  Anything from temporary requirements to vacancies that don’t match your particular skills.  Before we go any further, this isn’t a list of excuses. As an industry, we should respect our[…..]