In 2005 Mr Orr, a Black Jamaican youth worker, was dismissed by Milton Keynes Council for misconduct. He was dismissed by a Mr Cove who heard the case against Mr Orr, and at which Mr Orr was not present. Mr Cove conducted the disciplinary hearing in good faith and, as noted, this resulted in Mr Orr’s dismissal from his employment. Mr Orr subsequently pursued an  unfair dismissal complaint.

A key part of that complaint was that the Respondent Milton Keynes Council was aware (even though Mr O’Cove was not) was aware of potentially exculpatory evidence that would have benefited Mr Orr; in particular, that the conduct for which Mr Orr was dismissed for was itself borne of and a response to racist conduct towards Mr Orr from his manager. On the question of whether this could be considered as a relevant factor when considering the reasonableness of the decision to dismiss the Court of Appeal made the controversial decision that what was relevant was the decision and knowledge that was held by the decision maker (Mr Cove) and not the respondent employer as a whole despite the claim being against the employer rather than the individual decision manager (Orr v Milton Keynes Council [2011] IRLR 317). And so, on the question of whether Mr Orr was unfairly dismissed the fact that his own conduct was a response to racist conduct by a manager (for whom the Respondent was themselves liable under vicarious liability principles) was a legal irrelevance, the equity and substantial merits of the case be damned!

This remains the law in respect of unfair dismissal claims – it is what the decision maker knows that is key, so if an employer knows of evidence that exculpates an employee from wrongdoing but the decision maker is not themselves ‘in the loop’ then that is not relevant to the reasonableness of  a dismissal (so long as the decision maker has no reasonable basis for thinking something is amiss – in which case there may have been an unreasonable investigation).

This ‘silence is golden’ principle has in part also been mirrored in discrimination law such that in CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 a potentially age discriminatory decision was made to subject a worker to poor performance measures. However, although those proceedings would not have occurred but for that discrimination the procedure and penalty imposed were distinct from the decision to initiate it and so no discrimination could be applied to the subsequent acts of a different individual in the Respondent’s employment decision maker themselves. The outcome of course is to make enforcing rights more difficult (as many will now be out of time) and mean claims need to be submitted more frequently (i.e., when disciplinary proceedings commence and then, later, potentially further claims later).

In the long running case of Royal Mail v Jhuti this issue has been heard by the Supreme Court with a judgement due to be handed down next Wednesday (27 November). Although this is specifically a claim of automatic unfair dismissal for whistleblowing it seems likely that the continued applicability of the precedent in Orr will be examined and, potentially overruled.  And, if it does, there is a prospect that unfair dismissal law will claw a little more fairness into unfair dismissal law and, just maybe, any employees who find themselves in situations similar to Mr Orr will have a right of remedy for way their employer rather than just a single manager treated them in doing so.