Orr v Milton Keynes Council
The question arose in Orr v Milton Keynes Council whether someone who was delegated by their employer to hear a disciplinary could be deemed to know “relevant facts” only known to someone else in the Council. The Court of Appeal has said, however, that when assessing whether a dismissal is fair, it is only the knowledge of the person “deputed to carrying out the employer’s functions” that is relevant.
Mr Orr, who is of Jamaican origin, had been employed by the council as a part-time youth worker since 2002.
In October 2005 he discussed the details of a recent sexual assault with some young people at a community centre, although he had been told by his manager, Mr Madden, not to. A few days later he was rude to Mr Madden when discussing his working hours.
After a disciplinary hearing which Mr Orr did not attend, he was dismissed for gross misconduct by a senior manager, John Cove, who was not aware what had triggered the second incident. Mr Orr claimed unfair dismissal and race discrimination.
Tribunal and EAT decisions
The tribunal said that the second incident had been sparked by an underhand attempt by Mr Madden to reduce Mr Orr’s hours without his consent; and by the manager saying he couldn’t “understand a word you lot are saying” when Mr Orr, being upset, started to use Jamaican patois.
Although this amounted to race discrimination, the tribunal said the dismissal was fair because it was “a reasonable response to what was known to the dismissing officer at the time”.
The EAT agreed.
Court of Appeal decision
And the Court of Appeal, by a majority, has also now agreed. It said that the main question to decide was whether “the knowledge of Mr Madden is to be treated as the knowledge of the Council and as such ...imputed to Mr Cove”.
In other words, whether the person “deputed” to carry out the investigation on behalf of the employer could be deemed to know “any relevant facts” known to others within the organisation “who in some way represents the employer in its relations with the employee”.
The Court concluded that was not what section 98 of the Employment Rights Act 1996 required when deciding whether a dismissal was fair or unfair, and to decide otherwise would impose a more onerous duty than the section provided for.
When deciding whose knowledge counted as the knowledge of the employer, the answer had to be the person who was “deputed to carry out the employer's functions under section 98”. Reasonableness should therefore be decided depending on the employer’s belief and knowledge at the time of dismissal.
It concluded therefore that: “If the investigation was as thorough as could reasonably have been expected, it will support a reasonable belief in the findings, whether or not some piece of information has fallen through the net”.
This was a harsh outcome for Mr Orr. However, his case was not helped by his decision not to attend his own disciplinary hearing or explain why he was rude to his manager. To this extent, the decision stresses the importance of employees bringing mitigating factors to the attention of the decision maker during a disciplinary process.