Employment Review: June 2015 – No discrimination if decision maker is not motivated by the Claiman’s protected characteristic

In the case, Dr Reynolds, the Claimant, worked as Chief Medical Officer under a consultancy agreement with CLFIS (UK) Ltd (Canada Life). Following a presentation by the Managing Director of the Division (prepared with the assistance of another manager), which highlighted various perceived problems with the Claimant’s performance, Canada Life’s UK General Manager decided to terminate the consultancy agreement. The Claimant was 73.

The Claimant issued proceedings against Canada Life claiming that the termination of her consultancy agreement was direct age discrimination under the Employment Equality (Age) Regulations 2006 (which applied at the time notice was given). The tribunal dismissed her claim focusing only on the mental processes of the General Manager, although it was common ground that his decision was informed by the views of other employees which may possibly have been tainted by discriminatory motives.

Upon appeal, the Employment Appeal Tribunal (EAT) held that the tribunal had erred by focussing solely on the General Manager’s motivation and disregarding the involvement of other individuals in the process. In its view, if a protected characteristic such as age had a significant influence on the decision to dismiss, discrimination could be established, even if the person who makes the actual decision had not acted for that reason.

However the CA restored the tribunal’s decision, holding that there was no error in only considering the General Manager’s motivation and that the EAT was wrong to allow the Claimant’s appeal on that basis. The CA from the outset pointed out that if this were a case where the decision to terminate the Claimant’s contract had been made jointly by the General Manager and others, the tribunal would have had to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision.

In contrast the tribunal’s findings showed that the General Manager reached his decision on his own as a result of information provided, and opinions expressed, by other employees and that this was not the same as them being parties to the decision. Nevertheless the CA conceded that there might be cases where it was difficult to distinguish the two situations but held that the tribunal was fully entitled to treat this case as one where the General Manager made the relevant decision alone.

In the CA’s view, it was fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act it is responsible has done an act which satisfies the definition of discrimination. This means that the individual employee who did the act complained of must himself be motivated by the protected characteristic and another person’s motivation could not render the act in question discriminatory as otherwise very unfair consequences would follow.

Therefore, according to the CA, the correct approach in a ‘tainted information’ case is to treat the conduct of the person supplying the allegedly discriminatory information as a separate act from which loss could flow, provided it is not too remote. However, the employer should not be vicariously liable for loss which did not in fact flow from an employee’s discriminatory act, or which was not a sufficiently direct or foreseeable consequence of it.

Comment

This case should provide some comfort to employers in restricting the scope of discrimination claims where the decision maker does not discriminate but the actions of other employees, including those who provide information to the decision maker, could potentially give rise to concerns of discrimination. However, the key to the CA’s decision was an understanding that this was not a joint decision, rather it was a decision of the General Manager alone in that he had personally handled and taken full responsibility for, the termination of the consultancy agreement and it was this act about which Dr Reynolds was complaining.

Therefore, employers should note that where employees are providing information or opinions which are used for the purpose of a decision by someone else it will not necessarily constitute participation in that decision. However, where for instance, a panel is making the decision to dismiss an employee the tribunal will consider the motivation of all the relevant decision makers.

The employee could also have brought discrimination claims based on the separate discriminatory acts other than the decision to dismiss but she did not do so in this case.

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