In an unfair dismissal case involving misconduct, a tribunal will take into account all the circumstances, including provocation directed at the employee, in determining whether a dismissal was reasonable in the circumstances.
What however about a situation where the dismissing manager is unaware of some of the mitigating factors and fails to take them into account? Will such a dismissal nevertheless be fair?
This was the interesting set of circumstances in the Court of Appeal case of Orr v Milton Keynes Council. In this case, the employee was dismissed for two incidents, one of which included rudeness to a line manager. Unknown to the dismissing manager, this rudeness was due to being provoked by the line manager in a way that was found to amount to race HR.
Despite this fact however, the Court found that the dismissal was fair. The line manager’s conduct had never been brought to the attention of the dismissing manager and it was not unreasonable of him to dismiss the employee on the basis of the evidence before him.
Perhaps, unsurprisingly, the Court was at pains to point out that ignorance of key information would not be a defence open to the employer if such information could reasonably have been found out during an appropriate disciplinary process.