ABG Employment Newsletter – February 2011

Unfair Dismissal – Extent of Employer’s Knowledge

In the case of Orr -v- Milton Keynes Council the Court of Appeal has ruled that an employer cannot be deemed to have knowledge of all facts known to its employees when deciding whether it was reasonable to dismiss an employee. As long as a fair and thorough investigation is carried out, it is only the facts known to the decision maker that are relevant in deciding whether the dismissal was fair. In determining the fairness of the dismissal a tribunal must assess the reasonableness of the employer’s conduct, not the level of injustice to the employee.

In this case the Claimant had been dismissed for being rude and aggressive during a discussion about working hours with his manager. He brought an unfair dismissal claim and the tribunal found that the reason for his rude and aggressive behaviour was that his manager had made an underhand attempt to reduce his working hours and when the Claimant became upset by this the manager made a racist comment towards him.

The tribunal ruled that nevertheless the dismissal was fair because there had been a reasonable investigation and the disciplining manager did not know of the manager’s behaviour or racist comments when he made the decision to dismiss.

The Court of Appeal has ruled that the tribunal were correct in finding the dismissal fair. The classic test is whether the employer had carried out a reasonable level of investigation and had reasonable grounds for believing that the employee had behaved in a way that justified his dismissal. The Court recognised that where an employer is a large organisation, the employer cannot be deemed to have knowledge of everything known to those working for it. It is only the knowledge or state of mind of the manager who makes the decision to dismiss that is relevant.

Unfair Dismissal for Comment Wrongly Considered to be Inappropriate

In the case of Bowater -v- Northwest London Hospitals NHS Trust the employer dismissed a nurse for making what it considered to be an inappropriate lewd comment whilst straddling a patient in order to restrain him.

Ms Bowater was assisting colleagues to restrain a patient who was having an epileptic fit. He was on a trolley and his trousers had been removed so a doctor could give him an injection. Ms Bowater climbed onto the trolley to sit on his ankles at which point the patient kicked out and Ms Bowater landed astride his exposed genitals. The patient was not aware of what was happening.

6 weeks later it emerged that Ms Bowater had said “It has been a few months since I have been in this position with a man underneath me”. Following a disciplinary hearing she was found guilty of gross misconduct and summarily dismissed.

The Court of Appeal has now ruled that the Employment Tribunal were correct to find that she was unfairly dismissed. Dismissal was not within the range of reasonable responses (although it was decided that she had contributed to her dismissal by 25%). It was ruled that, although the remark was unprofessional, a reasonable employer would have taken into account the mitigating circumstances, including the fact that the nurse’s remark was directed at herself, not at the patient, and at worse it was lewd, but the majority of people would have considered it to be merely humorous. Moreover no member of the public was present and the patient was not aware of what had happened.

Constructive Dismissal – Intention of Employer

In the case of Tullet Prebon plc -v- BGC Brokers the Court of Appeal has clarified that when deciding whether or not an employee was constructively dismissed, the intention of the employer, viewed objectively, may be taken into account.

In this case a team of brokers employed by Tullet Prebon had been offered future employment by BGC Brokers. Tullet’s senior management then tried to persuade the brokers to renege on their future contracts with BGC. They refused, but instead resigned from Tullet and claimed constructive dismissal with a view to claiming that they were thereby released from their post termination restrictive covenants and their obligation to give notice.

However their argument that they were constructively dismissed, for which they relied on the implied term of mutual trust and confidence, was rejected. The Court of Appeal ruled that Tullet was not guilty of a repudiatory breach of the implied term of trust and confidence as its intention was not to damage its relationship with the brokers, but rather to strengthen it. So it could not be said that it had shown an intention to abandon and altogether refuse to affirm the employment contract, but rather the reverse.


The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg 
+44 (0)115 934 3310

David Hardstaff
+44 (0)115 934 3323

Kathryn Meir
+44 (0)115 934 3308