An interesting decision which illustrates just how narrow the concept of “unfair dismissal” is, is found in the case of Orr -v- Milton Keynes Council. This is a case in which the Employment Tribunal and then the Court of Appeal found that an employer had dismissed an employee fairly and was not therefore liable for unfair dismissal, but was nevertheless guilty of race discrimination.
The essential facts are that Mr Orr, a youth worker of Jamaican origin committed two disciplinary offences: discussing a case of sexual assault with young people at a community centre; and losing his temper and behaving in an offensive and insubordinate manner towards a manager (Manager A). The insubordinate and offensive language was used in the context of the meeting in which Manager A had himself treated Mr Orr in a derogatory way and criticised his language, specifically the use of Jamaican patois. Manager A said “you lot are always mumbling on and I cannot understand a word you lot are saying”.
When Manager B came to consider the disciplinary offences he was not aware of the racist remarks made by Manager A in the course of Manager A’s meeting with Mr Orr. This was partly because Mr Orr did not himself attend the disciplinary hearing (despite having the opportunity to do so). Manager A did attend the dismissal meeting but unsurprisingly withheld from Manager B the fact that he himself had made racist remarks to Mr Orr. Manager B dismissed Mr Orr for gross misconduct. Mr Orr brought a claim of unfair dismissal and race discrimination.
The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all found that the dismissal was fair but that the employer, Milton Keynes Council, was liable for Manager A’s racist remarks. The interesting points to arise out of the case are that (a) particularly in large organisations a decision-maker will not be deemed to know about inappropriate racist remarks made by other managers, even if those remarks are made in the course of an investigation that relates to and results in the dismissal, or in the imposition of another disciplinary penalty; and (b) that the employee, Mr Orr, did himself no favours by failing to attend the disciplinary meeting. Had he attended, the racist language and attitude of Manager A would probably have been drawn to the attention of Manager B. But in short it is interesting that as a matter of employment law an employer can unlawfully discriminate against an employee but act fairly in dismissing him. The concept of unfair dismissal is narrow indeed with the focus on the decision-maker i.e what was Manager B’s state of mind at the time of the dismissal?
David Ludlow
11 May 2011
