Articles
When can a dismissal be discriminatory, but still fair?
Can the circumstances leading to a dismissal be discriminatory, but nevertheless the dismissal itself still be fair? The Court of Appeal recently looked at the extent to which an Employment Tribunal may criticise a dismissal with the benefit of hindsight [Orr v Milton Keynes Council]. Both the investigating and dismissing officers, who had followed a fair procedure, had been mislead by a fellow manger, the main witness, who was guilty of making racist comments to the Claimant and goading him into the behaviour which prompted his dismissal. But can a dismissal be at the same time fair and be borne out of race discrimination? The Employment Tribunal struggled with this apparent injustice to the Claimant.
It was found that even though the Claimant had been subjected to race discrimination in the form of racist comments from his line manager, which led to the Claimant's confrontational behaviour towards the manager, for which he was disciplined, his dismissal was fair. Both the Employment Appeal Tribunal and the Court of Appeal agreed.
The procedure could not be faulted and the investigating and dismissing officers did not know about the racist comments, because the line manager concealed this information. No further information was forthcoming from the Claimant, who refused to take part in the disciplinary procedure.
Although there was also a second offence which was relevant to the dismissal, the key issue was whether the ‘employer' had imputed knowledge of the racial harassment and goading, because the line manger knew of it, even though the dismissing officer did not. Had the dismissing officer known of the circumstances of the Claimant's offence, a dismissal may well have been too harsh a sanction. Despite the apparent injustice to the employee the Tribunals and the Court of Appeal agreed that an employer should not be deemed to have the knowledge available to all of its employees, even managers. The fairness of the decision could only be judged in the light of the information available to the employer (i.e. the dismissing officer following a thorough investigation) at the time of the dismissal.
Employment Tribunals are not permitted to substitute their own decision for that of the employer, effectively re-running the disciplinary process, and can only overturn a decision which no reasonable employer would have reached in the same circumstances, and which was ‘outside of the band of reasonable responses'. Despite the arguable unfairness to the Claimant this is a decision based on common sense and will mean that employers can feel assured that where the procedure is fair, the dismissal is also likely to be fair. It also means that employees are less able to question a dismissal having refused to take part in the disciplinary process.
For more information on the above or for advice on any other employment issue please contact our employment department on 020 7354 3000 or e-mail employment@colmancoyle.com
Author Profile: Linda Quinn, Associate
Date published: 17th February 2011