In Orr v Milton Keynes Council, the Court of Appeal held that, in a claim for unfair dismissal, an employer cannot necessarily be held to know something of which the decision maker was unaware, simply because it is known to other employees.

Mr Orr, a black youth worker of Jamaican origin, breached express instructions from, and was later rude to, his line manager, Mr Madden. Mr Orr subsequently failed to attend a disciplinary meeting and was ultimately dismissed following an investigation carried out by a different manager, Mr Cove. It later transpired that the reason Mr Orr had been rude to Mr Madden was because Mr Madden had attempted, using underhand methods, to change Mr Orr's working hours and, in the course of a heated argument about those methods, had made a racist remark about him. This information was not made available to Mr Cove when he carried out his investigation. Mr Orr claimed unfair dismissal.

Holding that the dismissal was fair, the Court of Appeal emphasised that while it could be assumed that the employer was in possession of facts known to the investigating manager, Mr Cove, the same could not be said of Mr Madden's knowledge. Only the knowledge of the employee tasked with carrying out the investigation can be attributed to the employer. The Court of Appeal held that Mr Cove had carried out a reasonable investigation, despite the fact that Mr Madden had concealed details of the dispute. It would be impractical to extend the scope of an employer's knowledge to that of all employees, especially in a large organisation. The key test is whether the employer has satisfied its duty to carry out a reasonable investigation and not whether the dismissal caused a potential injustice to Mr Orr.

Impact on Employers

  • Employers must carry out a reasonable investigation in order fairly to dismiss an employee. In relation to that investigation, and any decision based upon it, an employer will be assumed to have the knowledge of the investigating employee.
  • This means that ignorance of key information known to other employees (including in this case, the dismissed employee's line manager) will not render a dismissal unfair, provided the information could not have been discovered through an appropriate disciplinary procedure.
  • Where another employee has knowledge of facts that would be relevant to an investigation but does not disclose this to the investigating officer, the employer will not be deemed to know the facts in question, so long as the investigation was carried out properly.