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Orr v Milton Keynes Council

 In this month’s Employment News, we look at what happens to a dismissal where facts not known to the dismissing officer could affect the decision to dismiss; whether a discrimination claim will be successful in relation to a job advert; and staying on the topic of discrimination, whether dismissing someone for manifesting their spiritual beliefs amounted to discrimination.


Whether facts unknown to the dismissing officer rendered the dismissal unfair

For a dismissal on grounds of misconduct to be fair, an employer must show that it genuinely believed, based on reasonable grounds, and having conducted a reasonable investigation, that the employee had committed the alleged misconduct.

The case of Orr v Milton Keynes Council [2011] EWCA Civ 62 deals with the question of what happens where there are facts known to an employee’s manager but not known by the decision maker and whether this affects the fairness of the dismissal.

Mr Orr is black and of Jamaican origin. He worked part time as a youth worker at the Council’s community centre. Against his line manager’s express instructions; he discussed a recent sexual assault with some of the young people at the centre. Three days later, he was rude to his line manager.

The Council took the view that both these actions, separately amounted to gross misconduct. After attending a disciplinary meeting, chaired by a group manager, Mr Orr was dismissed for gross misconduct and he brought claims for unfair dismissal and race discrimination.

The Tribunal found that the investigation conducted by the Council was fair, but nevertheless found that Mr Orr’s rudeness to his line manager had been sparked by the line manager’s attempt to reduce his working hours without agreement and that when an upset Mr Orr began to speak in Jamaican patois, his line manager had responded in a way which amounted to race discrimination. The group manager who held the disciplinary hearing did not know about this.

Despite finding that Mr Orr had been the subject of direct race discrimination, the Tribunal held that Mr Orr’s dismissal was fair because the decision was reasonable, given what the group manager holding the meeting, knew at the time.

Mr Orr appealed to the EAT and then to the Court of Appeal. The Court of Appeal proceeded on the basis that the line manager had deliberately concealed his race discrimination from the group manager who conducted the disciplinary hearing. Nevertheless, the majority of the judges decided they could not attribute knowledge about the line manager’s discriminatory actions to the Council.

This case is good news for employers as it means that as long as an employer conducts a reasonable investigation before dismissing an employee and as long as the decision maker could not have known about facts that might have explained an employee’s misconduct, a dismissal can be fair.

Discriminatory Adverts

In the case of Berry v Recruitment Revolution and Others, if a person has no interest in an advertised job, they cannot bring a discrimination claim in respect of the advert.

Mr Berry, a man in his fifties, brought several age discrimination claims against recruitment agencies because they appeared to seek younger applicants in their adverts for jobs. For example, in one advert, a job was described as a “junior role” and another job was suitable for “recent graduates”. However, Mr Berry did not appear to have any intention of applying for the jobs. He complained to Recruitment Revolution that one of its adverts excluded him from applying for the job because it made him feel that he was too old to apply for the job. The agency encouraged him to apply for the job, apologised for the wording of the advert, and said that they should not have stated in an advert that the job was only suitable for school­leavers. Despite the agency’s efforts, Mr Berry did not apply for the job.

Four of his claims were heard in the Employment Tribunal and were struck out or dismissed. Mr Berry appealed against all four decisions.

The Employment Appeal Tribunal held that Mr Berry could not claim discrimination on the basis of adverts for jobs that he had no interest in doing where the adverts did not have any impact on the Claimant. The Tribunal warned that Claimants who use the Age Regulations in order to make a financial gain, will be at risk of paying costs.

This robust approach is positive for employers who are sued by serial Claimants where it is clear that the claims are unlikely to be successful.

Disciplinary on the grounds of religion or belief

The case of Power v Greater Manchester Police Authority held that dismissing a person for manifesting their spiritualist beliefs in an unacceptable manner is not considered to be discriminatory.

Mr Power commenced work as a Special Constabulary Trainer for Greater Manchester Police Authority and, within only a few weeks, his employment was terminated. He was a spiritualist who believed in life after death and communicating with the dead. He argued that he had been dismissed on the grounds of his religious or philosophical beliefs and he was therefore a victim of discrimination on the grounds of his religion or belief. The Employment Tribunal found that he was dismissed because:

1. Shortly after his employment had commenced, his employer discovered that he was not suitable to train junior police officers on the basis of his previous conduct as a voluntary role player at two police training establishments, where his behaviour and attitude was found to be very disruptive and unhelpful; and

2. He had distributed spiritualist posters and CD­ROMS in the workplace. He was not dismissed because of his spiritualist beliefs but due to the way in which he had manifested his beliefs. This distinction was key in the decision.

This case illustrates that it will be difficult for an employee to claim that they have suffered discrimination when their employer has not dismissed them on the grounds of their beliefs but because of the way in which they have manifested. This case highlights the importance of setting out clearly why an employee has been dismissed. In this case, it was because of the unacceptable way in which he expressed his belief and not because of his belief.

In the News

Compensation Limits

Compensation limits were increased from 1 February 2011. The maximum week’s pay for calculating redundancy payments has increased from £380 to £400 The new maximum compensatory award for unfair dismissal increases to £68,400. The maximum unfair dismissal award (basic and compensatory) is now £80,400.

Confirmation of abolishment of default retirement age

Following on from our briefing dated December 2010, the Department for Business, Innovation and Skills confirmed that the default retirement age will be abolished from 30 September 2011. However, the ACAS website has suggested that the transitional provisions will provide for the default retirement age to survive until 6 April 2012, provided that the employee has reached 65 on or before 30 September 2011. This allows for up to 12 months’ notice of intention to retire. The Government has stated in its response to the consultation paper that the dismissal of old workers should be managed either by discussion or by formal performance management procedures.

Sejal Raja sejal.raja@rlb­
© RadcliffesLeBrasseur
February 2011


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.