Employer does not know everything

 

 

In Orr v Milton Keynes Council the Court of Appeal has held that, in an unfair dismissal claim, an employer cannot be held to know everything known to its employees.  When assessing whether a dismissal is fair under  it is the person deputed to make the disciplinary decision whose knowledge or state of mind is intended to count as the employer’s knowledge or state of mind. Accordingly, the claimant was not unfairly dismissed in circumstances where exculpatory facts relevant to his misconduct were known to his manager but not the dismissing manager.

O, a black youth worker, discussed a sexual assault with some young people in breach of the express instructions of his manager, M. 3 days later, in a an argumentative discussion about working hours, O was rude to M. C conducted a disciplinary hearing, which O did not attend, and found that both allegations(underlined) were established and each amounted to gross misconduct, and dismissed O. 

O then claimed unfair dismissal and race discrimination. A tribunal found that the argument at the centre of the second incident had been caused by M’s underhand attempt to change O’s working hours, and M’s statement that ‘I can’t understand a word you lot are saying’ after O spoke in Jamaican patois. While the statement amounted to race discrimination, O’s dismissal was found to be fair. C, the dismissing officer, was not aware of this background to the second incident, and dismissal was a reasonable response to what was known to C at the time.
 
When the case got to the Court of Appeal the central issue was whether one manager's knowledge can be imputed to another manager who makes a decision to dismiss. By a majority, the Court concluded that, for the purpose of considering whether a dismissal is unfair, it is the person carrying out the employer’s disciplinary process whose knowledge or state of mind is intended to count as the employer’s knowledge or state of mind.
 Reasonableness of the decision  must therefore be considered in light of that person’s investigation and knowledge. To impute the dismissing manager with knowledge of behaviour that he could not reasonably acquire through the appropriate disciplinary procedure would impose a more onerous duty than that set out in the legislation. If the investigation was as thorough as could be reasonably expected, it will support a reasonable belief in the findings, whether or not some information has escaped.

While the Court's majority decision leads to an apparently harsh outcome, Lord Justice Moore-Bick noted that the provisions ‘must be interpreted in a manner that makes it capable of practical application... whether the employer is an individual or large organisation’.  Of course, if O had turned up to the hearing the background facts would have come to light and that might well have made a significant difference to the disciplinary decision. The moral for employees is to turn up at disciplinary meetings otherwise relevant facts may not be made known to the disciplinary officer. Employers should not think that hey can turn a blind eye to uncomfortable facts and proper and full investigation is still necessary.

 

 

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