[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]
The Court of Appeal has handed down its decision in Orr v Milton Keynes Council, which is authority for the proposition that in an unfair dismissal claim, an employer cannot be held to know key mitigating facts known to other employees about an individual, including his line manager, of which the decision maker had been unaware. It is only the person who is "deputed to carry out the employer's functions" whose knowledge or state of mind is relevant. Thus, ignorance of key information known to another employee does not render a dismissal unfair, provided it could not reasonably have been acquired through an appropriate disciplinary procedure.
O, the appellant, had been dismissed following two separate incidents, including rudeness to his line manager, M, both of which his employer found amounted to gross misconduct. However, the decision maker had been unaware that the second incident had been provoked by the conduct and language of M, which the Tribunal later found amounted to direct race discrimination.
Nevertheless, the Court of Appeal held by a majority that the tribunal had been correct to conclude that the dismissal remained fair because the decision, on the facts known to the decision maker, was reasonable.
Interestingly Sedley L.J (in the minority) preferred to take a holistic approach, examining the totality of the information known to an employer, including any of its employees. This, he acknowledged, would be a departure from the current construction of 'reasonably' in s98(4) of the Employment Rights Act 1996.