A Tale Of Three Unfair Dismissal Appeals, Anthony Korn Explores The Lessons To Be Learnt From The Court Of Appeal Rulings In Orr v Milton Keynes Council, Bowater v Northwest London Hospitals NHS Trust And Fuller v London Borough Of Brent

In Orr v Milton Keynes Council [2011] IRLR 317, O was dismissed for discussing with some young people at a community centre a sexual assault that had recently taken place when he was expressly instructed not to do so. Disciplinary proceedings were also brought against him because he had become rude and truculent towards his manager, M, in the course of a discussion about working hours. The disciplinary hearing was conducted by a group manager, C, who found both allegations established and O was dismissed for his behaviour in relation to both incidents. O complained of race discrimination and unfair dismissal. The ET upheld his race discrimination complaint on the basis that M had made some racist comments in the course of the meeting but held that the dismissal by C was neither discriminatory nor unfair because he was unaware of the comments. This was because O had refused to participate in the disciplinary process and C was unaware of M's discriminatory comments. On appeal, O's Counsel sought to argue that the employers were deemed to be aware of the comments made by M because of his management status. However, the Court of Appeal, by a majority, rejected this argument. The issue, as in all cases of misconduct, was whether at the time of dismissal, the employers believed on reasonable grounds that O had committed acts of misconduct which were of sufficient seriousness to justify dismissal. It was quite reasonable in principle for an employer to delegate the investigation to a "person within the organisation who has sufficient skill and experience to carry it out effectively having regard to the nature of the allegations and the position of the employee against whom [the allegations] are made". The majority ruled that the knowledge held by another employee, even of management level, cannot be imputed to the person who investigates the matter or the employer on behalf of whom the investigation is undertaken. If the investigation is as thorough as could reasonably be expected, it will support a reasonable belief in the findings, whether or not some piece of information has fallen through the net. C could not therefore be imputed with the knowledge of M's behaviour. On first blush, the outcome of this case may seem surprising but, despite the dissent of Sedley LJ, the majority's approach is consistent with the earlier unfair dismissal case law. O's big mistake was his refusal to participate in the disciplinary process and to put C on notice of...