Discrimination and the decision makers – where does discrimination lie?

The problem

In a discrimination claim, how is the tribunal to identify whether discrimination has taken place?  Should it focus on the mind of the decision maker and/or others involved in a matter?

The principle

This is the issue addressed in CLFIS (UK) Ltd v Reynolds.

Ms Reynolds worked as a medical officer under a consultancy agreement.  Concerns were raised regarding her performance and so it was decided by the general manager to terminate the consultancy agreement she was working under.  Ms Reynolds was 73 years old at the time and brought a tribunal claim against CLFIS for direct age discrimination.  The employment tribunal found that CLFIS was able to demonstrate a non-discriminatory explanation for its decision to terminate the consultancy agreement; namely that the general manager was dissatisfied with the performance of Ms Reynolds.

The EAT considered this matter on appeal and found that the tribunal had made an error by focussing solely on the general manager's motivation and disregarded the involvement of other individuals in the process (for example the MD and another manager who highlighted to the general manager Ms Reynolds' feelings).  In the view of the EAT, if the prohibited ground such as age had a significant influence on the decision to dismiss, discrimination could be made out even if a person who makes the actual decision has not acted for that reason.

This matter went on to the Court of Appeal who restored the original tribunal's decision holding that there was no error in law by only considering the general manager's motivation.  The EAT was wrong to allow Ms Reynolds' appeal on this basis.  It was concluded that even though the general manager's decision was reached perhaps as a result of allegedly discriminatory information provided by other managers this was not the same as them being parties to the decision.  It was the Court of Appeal's view that it was fundamental that liability can only attach to an employer where an individual employee or agent responsible for a decision had been motivated by the protected characteristic itself. Another person's motivation cannot render the act in question discriminatory.

The practice

This case highlights the importance of termination matters being conducted by neutral and independently minded individuals who can make their own decisions based on the evidence before them.  It also highlights the need for decision makers to fully understand discrimination laws in order to minimise the danger of being found to have discriminated against anyone.

For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected]