Millbrook Proving Ground Ltd v Jefferson

When deciding whether a dismissal is fair or not, tribunals have to consider whether the dismissal fell within a band of reasonable responses. In Millbrook Proving Ground Ltd v Jefferson, the Employment Appeal Tribunal (EAT) identified the scale of investigations expected of employers in order to fall within that band.

Basic facts

Mr Jefferson had worked for Millbrook for many years when he was asked to head up a project for BMW at their site in 2006. During the course of the project, however, he was accused of making allegedly racist comments by a member of his team who reported him to Mr Cassidy, a manager at Millbrook.

Mr Jefferson apologized and explained the comments were not intended to be racist. One was a Lenny Henry joke which he had repeated flippantly and the other was about an Asian employee (Mr Tirthdas) who he had said would not be hired by the Millbrook management because of the colour of his skin.

Mr Cassidy discussed the matter with the relevant BMW manager, Mr Neal, who said that the matter had been dealt with. Mr Cassidy was not satisfied, however, and asked the complainants to put their comments in writing. Some explained they could not remember what had been said, while others said they had not been offended by it. Rather confusingly Mr Tirthdas first said he had not been offended by it but later said he could not remember the remark.

Mr Cassidy did not speak to any of the individuals in person. Nor did he interview the employee who made the original complaint, although Mr Jefferson suggested he had an ulterior motive for making it.

He was dismissed for racial discrimination and for bringing the company into disrepute.

Tribunal decision

Although the tribunal accepted that offensive remarks and slurs about the company were unacceptable, it said that the decision to dismiss did not fall within the range of reasonable responses open to it.

This was because the company should have taken into account that the comments amounted to “workplace banter”; that the people to whom they were directed could not have heard them; that no one who heard them complained to Mr Jefferson at the time; that BMW considered it had dealt with the matter; and that other individuals facing serious misconduct allegations had not been dismissed.

EAT decision

The EAT upheld the appeal in part. It said that:

  • It was reasonable for the company not to have interviewed the employee who triggered the procedure. Whatever his motives, they did not affect the question as to whether Mr Jefferson had committed the alleged misconduct
    Nor did the company need to interview the two witnesses to the Lenny Henry joke as Mr Jefferson had admitted making those comments. It was therefore reasonable for the company not to investigate further. However, if the employer thought that the comments had not been made flippantly as Mr Jefferson had alleged, it was vital to have interviewed the two complainants in order to enable them to come to a decision on that issue as it was clearly relevant to the type of disciplinary sanction that might be applied. However, if they thought it was irrelevant whether they were flippant or not, then it was right to conclude that the decision to dismiss fell outside the range of reasonable responses.
    As for the second incident concerning Mr Tirthdas, the EAT said that he had been interviewed by Mr Neal and although the information was second-hand, the company had not failed completely to gather information. The tribunal had therefore been wrong to decide that the company’s decision to dismiss was unreasonable and “the only proper conclusion was that a reasonable employer could have thought it appropriate to act on the evidence that they had at the time, and that the finding of misconduct with respect to that incident was justified.”

It remitted the case to the tribunal for a re-hearing on the last aspect of the decision.

Comment

The law requires an employer’s investigation to be even handed and adequate but what that actually entails is subject to a band of reasonable responses approach itself, and will vary according to the circumstances (e.g. serious charges must be conscientiously and carefully investigated if they are denied).

What this case clearly demonstrates however is that merely gathering statements may not be enough. An inquisitorial and analytical approach must be taken where disputed elements are vital to an employer’s ‘reasonable belief in guilt’ or their choice of an appropriate sanction. A failure to do so will render a dismissal unfair.