The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown that the insubordination had been in response to unreasonable conduct from the manager, and to a racist comment made by him; but that had not come out in the evidence available to the decision-taker. He claimed unfair dismissal and racial discrimination. The tribunal allowed the discrimination claim, but found the dismissal to be fair, on the basis that decision maker acted reasonably on the basis of the information available to him. The court was now asked whether an employer, when considering dismissal of an employee for misconduct, is to be taken to know exculpatory facts which are known to the employee’s manager but are withheld from the decision-maker.
Held: (Sedley LJ dissenting) The appeal failed. The employer in this context was the decision maker,
Moore-Bick LJ said that it was well-established that the exercise required by section 98(4) depends on what the employer reasonably believes, on the basis of what it reasonably knows, about the relevant matters: ‘Since belief involves a state of mind, it is necessary, as Lord Hoffmann said, to determine whose state of mind was for this purpose intended to count as the state of mind of the employing company or organisation.’
Parliament must have appreciated that in the case of an organisation of any size the power of dismissal would be exercised not at the top of the organisation but by a duly authorised and appropriately skilled person at a lower level: ‘The answer to the question ‘Whose knowledge or state of mind was for this purpose intended to count as the knowledge or state of mind of the employer?’ will be ‘The person who was deputed to carry out the employer’s functions under section 98′.’ The decision maker should not have the responsibility for discovering matters he could not reasonably acquired through the appropriate disciplinary procedure.
Sedley LJ dissented from the dismissal of Mr Orr’s appeal, holding that the officer appointed to decide whether an employee should be dismissed: ‘has to be taken to know not only those things which he or she ought to know but any other relevant facts the employer actually knows [including] facts known to persons who in some realistic and identifiable way represent the employer in its relations with the employee concerned. If, as would seem inescapable, relevant things known to a chief executive must be taken to be known to both the corporation and its decision-maker, the same is likely to be the case as the chain of responsibility descends. It is equally likely not to be the case when one reaches the level of fellow employees or those in more senior but unrelated posts.’
Judges:
Sedley, Mooe-Bick, Aikens LLJ
Citations:
[2011] EWCA Civ 62, [2011] ICR 704, [2011] IRLR 317, [2011] 4 All ER 1256
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited by:
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Cited – Reilly v Sandwell Metropolitan Borough Council SC 14-Mar-2018
Burchell case remains good law
The appellant head teacher had been dismissed for failing to disclose the fact that her partner had been convicted of a sex offence. She now appealed from rejection of her claim for unfair dismissal.
Held: The appeal was dismissed. The . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 September 2022; Ref: scu.428365
