Mr Orr, who was of Jamaican origin, was subject to disciplinary proceedings for two incidents. During one of the incidents Mr Orr’s line manager, Mr Milton, had used racist language. Mr Orr was subsequently dismissed for gross misconduct in respect of both incidents. He claimed unfair dismissal and race discrimination. The employment tribunal found that Mr Milton had provoked the altercation and had racially discriminated Mr Orr, but that his dismissal had been fair as the senior manager who oversaw the disciplinary was unaware of Mr Milton’s racist remark.

On appeal Mr Orr argued that Mr Milton’s knowledge that he had provoked the altercation was imputed to the employer, and that the failure by the senior manager conducting the disciplinary proceedings to take that information into account meant that the decision to dismiss had not been reasonable. The Court of Appeal decided that the employer had taken all reasonable steps to inform itself of the relevant facts prior to the decision to dismiss, had formed the view on reasonable grounds that Mr Orr had behaved in a way that justified his dismissal and the decision to dismiss fell within the band of reasonable responses. Where an employer is a large organisation, deciding what knowledge the employer has at a particular time is difficult. The court decided to take a practical approach and found that it should only be the knowledge of the individual assigned to make the decision on the employer’s behalf that is relevant.

This is a useful reminder that the question for Tribunals is whether dismissal was a reasonable response by the employer. This is not the same as assessing whether the claimant suffered an injustice. Employers should continue to follow a full and fair investigation process prior to deciding to dismiss or to take other disciplinary action.

Orr v Milton Keynes Council [2011] EWCA Civ 62