Exculpatory facts known by an employee’s manager but not shared with the investigating manager do not make a subsequent dismissal unfair, provided the employer conducted a fair and thorough investigation. This was the majority ruling of the Court of Appeal in Orr v Milton Keynes Council.
The claimant was a youth worker who was dismissed for:
- discussing an alleged sexual assault with some young people in contravention of his manager’s instructions; and
- insubordination to his manager.
The senior manager appointed to investigate concluded that both incidents occurred and both amounted to gross misconduct. However, the investigating manager was unaware that the insubordinate comments were prompted by racist comments directed by the manager towards the claimant and by the manager's attempts to cut the claimant's working hours. Nonetheless, the Court of Appeal held the dismissal to be fair because only the facts known to the decision maker were relevant.
The only question mark in the case relates to the test for reasonableness and whether it adds a further test for the tribunal to consider. It could require the tribunal either to take a final look at the evidence or to determine whether the decision to dismiss was substantively, as well as procedurally, unfair. Despite one dissenting judgment on the point, the Court of Appeal ruled that existing House of Lords authority meant that the status quo could not be altered. Moreover, requiring an investigator to uncover facts that another individual has deliberately concealed would seem to set the bar too high. However, it remains to be seen whether the Supreme Court will revisit the issue.
In the meantime, the case is welcome confirmation for employers, especially larger ones, that delegation of responsibility for employee issues to suitably qualified individuals is not going to threaten the fairness of decisions as long as the employer’s conduct was reasonable. The level of injustice to the employee is irrelevant, though a fair and thorough investigation should give the employee the chance to raise any mitigating factors.