A response to a discriminatory remark can amount to misconduct

In Orr v Milton Keynes Council, the Employment Appeal Tribunal has held that the fact that an employee had been the subject of racist remarks does not necessarily excuse his response to them and that his behaviour could constitute misconduct, giving rise to a fair dismissal.

The employee, Mr Orr, had been dismissed for gross misconduct due, in part, to his conduct in a meeting at which his manager had made a racist remark. The EAT confirmed that the correct test to apply in these circumstances is the usual test for unfair dismissal to determine whether the dismissal was fair. Mr Orr's contention was that "but for" the discrimination, the dismissal would not have occurred; however, the EAT rejected this approach, stating that discrimination will only be relevant to the fairness of the dismissal if the employer had reached the decision to dismiss for discriminatory reasons.