Dismissal decision not discriminatory where final decision maker not influenced by discrimination

Case 1: The facts

Dr Reynolds, who was an expert in medical insurance, had worked since 1968 for a leading insurance provider, part of the Canada Life Group. After being made redundant in 1992, she worked freelance for her employer as its Chief Medical Officer under a consultancy agreement.

In 2010, Canada Life decided to end the agreement, citing concerns about Reynolds’ performance. For example, the insurance provider was concerned about Reynolds’ refusal to use email, or to attend meetings at the office in person and her insistence on using fax and post to communicate. However Reynolds believed that the decision was based on her age. She was 73 at the time. She brought a tribunal claim alleging age discrimination.

The decision to end the agreement was taken by Mr Gilmour, a senior manager, after hearing a presentation by two other managers. Although the presentation did not spell out that the agreement should come to an end, this was the conclusion Gilmour took away, and after the presentation, an HR manager met with the two managers who had delivered it and the three of them agreed that the agreement should end.

As a next step, Reynolds’ employer invited her to a meeting with Gilmour and the HR manager. Gilmour did not want to upset Reynolds, so instead of telling her the truth about the company’s concerns, he pretended they were looking into issues of succession planning. Understandably, when she found out about this subterfuge, she was very upset. After the meeting, Reynolds was told of the decision to end the agreement.

After reviewing all the evidence, an employment tribunal concluded that Gilmour’s decision to end the consultancy agreement was not age-related. Reynolds appealed to the EAT. In her appeal, she argued that even if Gilmour’s decision was not motivated by age, it was nevertheless heavily influenced by contributions from others – the two managers who gave the presentation and the HR manager. Their motivation should also have been examined to see whether it was tainted by discrimination, she suggested. The EAT agreed. If a protected characteristic, such as age, said the EAT, has a “significant influence” on the decision-making process, there can be discrimination even if the final decision maker is not motivated by discrimination. The insurance company appealed:

The ruling

The Court of Appeal (CA) reversed the EAT’s ruling, confirming that under the EA 10, there can only be discrimination where the individual employee who does the act complained of is motivated by a protected characteristic, such as age. There is no legal basis for suggesting that a person’s actions can be discriminatory based on somebody else’s discriminatory motivation. Otherwise, said the CA, the result could be very unjust. The decision-maker could find him or herself personally liable for discrimination even though completely free of any discriminatory motive. That cannot be right.

Commentary

Disciplinary, performance and capability decisions are often made by senior managers who have little personal knowledge of an employee’s background history in the organisation, on the recommendation of line managers or HR who are more closely associated with the employee and who have a lot of potential influence. It can be easy for managers who contribute to a final decision (for example by writing an investigation report) to be motivated, consciously or unconsciously, by discrimination.

This Court of Appeal ruling does not mean that as long as the eventual decision-maker is free from any discriminatory motive, there can never by a claim under the EA 10. On the contrary, if a manager who contributes to a final decision (for example by conducting the investigation) is tainted by a discriminatory motive and this leads to loss (such as dismissal), the employee can bring a claim against both that individual manager and the employer under the EA 10, on the basis that their discriminatory actions resulted in the loss, even though the manager who makes the final decision is completely innocent.

In addition, sometimes managers will be found to have acted jointly when making a discriminatory decision, in which case each manager will be liable under the EA 10. There was no evidence of joint decision making in this case. Instead Mr Gilmour clearly reached his final decision acting alone, even if he was influenced by contributions from the other managers.

Employees can use the Acas Guidance: Asking questions about discrimination, to help find out how the decision was taken and who influenced it at the various stages of the decision-making process.

CLFIS (UK) Limited v Dr Mary Reynolds [2015] EWCA Civ 439

www.bailii.org/ew/cases/EWCA/Civ/2015/439.html

www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf