What happens when some facts come to light after a decision has been made that cause you to wake suddenly in the night screaming "No! For the love of employment law, NO!"? Or, to put it another way, should you be taken to have knowledge of everything known to those working for you or, if this is clearly too onerous, just those at management level. The case of Orr v Milton Keynes Council is a soothing lullaby of a decision that should get you comfortably back to sleep.
Mr Orr was employed by Milton Keynes Council as a youth worker. Disciplinary action was taken against him on two grounds. Firstly, that he breached an express instruction from his manager not to discuss a sexual assault incident with some young people at a community centre and, secondly, that he was rude and aggressive during a discussion about working hours with the same manager. The allegations were investigated and Orr was invited to attend a disciplinary hearing. Importantly, Orr refused to attend the disciplinary hearing. The decision was taken to dismiss for gross misconduct.
Orr brought an unfair dismissal and race discrimination claim. He alleged, and the court agreed, that the cause of his aggressive conduct during the working hours discussion was the manager's underhand attempt to reduce his hours. Orr was upset and began to use Jamaican patois to which the manager responded (prepare to wince) "you lot are always mumbling … I can't understand a word you lot are saying." You might be thinking "crikey - what a disaster for the employer!" However, remember that Orr did not attend the disciplinary hearing and the manager, unsurprisingly, had not divulged this little incident. This therefore meant that those put in charge of the disciplinary did not know. Orr argued that since his manager knew the Council should have been deemed to have known and if they 'knew' then they shouldn't have dismissed - if you know what we mean.
The Court of Appeal (CA) accepted that in a large organisation, inevitably, there must be delegation to individuals who have authority to make decisions on the business' behalf. Crucially, it should only be the knowledge or state of mind of that individual that is relevant. The CA observed that it would just not be cricket to treat the decision maker has having 'knowledge' of an employee's behaviour that he could not reasonably have obtained through the appropriate disciplinary procedure.
This case is a reminder that the tribunal must assess the reasonableness of the employer's conduct, not the level of injustice to the employee. This may seem harsh on an employee but if a fair and reasonable investigation is carried out then this should mean the employee has an opportunity to raise any mitigating factors or explanations for their behaviour, before a decision is reached. As the CA pointed out, the law of unfair dismissal must be capable of "practical application" and to require you to uncover facts which another employee has deliberately concealed would be too high a burden. You see, its not always bad news from the tribunals!