The Court of Appeal has recently held in CLFIS (UK) Ltd v Reynolds (2015) that if there was no discriminatory motive on the part of a sole decision maker in the decision to dismiss then there was no discrimination, even if the decision maker relied upon reports of others who were motivated by discrimination.
This case concerned Dr Reynolds, who was an employee of Canada Life for over 20 years. After her employment ended, Dr Reynolds continued to work for Canada Life as Chief Medical Officer under a consultancy agreement, until the agreement was terminated by Canada Life. At the time that her consultancy agreement was terminated, Dr Reynolds was 73 years old.
The decision to terminate the consultancy agreement was made by the General Manager of Canada Life in the UK. Prior to the termination of Dr Reynolds’ consultancy agreement, others within Canada Life had been dissatisfied with her ways of working for some time. The General Manager had attended a series of presentations including one given by the Managing Director of the Division with input from the Director of Claimants Management Services which drew attention to issues with Dr Reynolds’ performance.
Dr Reynolds issued proceedings in the Tribunal claiming direct age discrimination. The Tribunal found that the decision to terminate the consultancy agreement was taken by the General Manager alone and therefore it considered only his motivation in reaching the decision, not the motivation of the others involved in the presentation.
The Tribunal found that Dr Reynolds had established facts from which the Tribunal could conclude, in the absence of an adequate explanation from Canada Life, that she had been discriminated against. However, the Tribunal also found that Canada Life had a non-discriminatory explanation; Dr Reynold’s performance and the fact that it did not believe she was capable of change. The Tribunal found that in this case the assumption that Dr Reynolds would not be capable of change was not based on her age. The Tribunal dismissed her claim, but Dr Reynolds appealed to the Employment Appeal Tribunal (EAT).
At the EAT, Canada Life argued that where the decision of the sole decision maker was influenced by reports prepared by others, the Tribunal should consider the mental processes of those others if they acted for reasons which were discriminatory. The EAT concluded that the views of those who gave the presentation had been a significant influence on the General Manager’s decision, and the Tribunal should have considered their mental processes in addition to those of the General Manager. The EAT ordered that the claim be remitted to the Tribunal to be re-determined, however Canada Life then appealed that decision to the Court of Appeal.
At the Court of Appeal, Canada Life argued that even if the mental processes of the others should be considered by the Tribunal, in this case Dr Reynolds had not brought her claim on that basis.
The Court of Appeal allowed the company’s appeal. The key point about this case is that the decision to terminate Dr Reynolds’ consultancy agreement was not a joint decision but it was made solely by the General Manager. If, however, the Tribunal had found that the decision was made jointly then it would have to consider the motivation of all involved because if any of them were motivated by discrimination then the decision would be tainted.
The Court of Appeal held that supplying information or opinions does not constitute participation in the decision, it is a separate act which should have been pleaded separately by Dr Reynolds. The Court held that this was the correct approach even if by the time a Claimant learns of the influence of others in the decision, for example through the exchange of witness statements, they are out of time to bring a claim because where the Claimant has a good reason the Tribunal has power to extend time limits to enable it to do justice.
This case concerned a rather complex point but is nevertheless useful for employers, who can potentially rely on this case where decisions made by individuals are being challenged. Inevitably the decision may take account of information or evidence from a number of sources, but if the decision maker themselves is not tainted by discrimination, it will almost certainly be difficult for a claimant to show that the decision was discriminatory.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).