Dismissal is judged on facts known at the time
In Orr v Milton Keynes Council the Court of Appeal held that where there has been a reasonable investigation an employer cannot be held to know everything known to its employees when a decision is taken to dismiss.
The Council investigated two acts of alleged misconduct against Mr Or, one of which was that he had been rude and aggressive during a discussion about working hours with Mr Madden. Mr Or did not attend the disciplinary hearing. The Council dismissed him for gross misconduct. A tribunal found that the second incident had been caused by Mr Madden’s underhand attempt to change Mr Or’s working hours and provoked by a remark made by Mr Madden, i.e. “’I can’t understand a word you lot are saying’ after Mr Or spoke in Jamaican patois. While the statement amounted to race discrimination, the dismissal was found to be fair. The dismissing officer, was not aware of this background to the second incident because Mr Madden had concealed the facts during the investigation.
The Court of Appeal held that an employer cannot be deemed to have knowledge of all facts known to its employees when deciding whether it was reasonable for it to dismiss. As long as a fair and thorough investigation has been carried out, which it had been in this case, it is only the facts known to the decision-maker that are relevant in determining whether the dismissal was fair. Therefore Mr Or had been fairly dismissed.
February 2011
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