Published 12 May 2015
In this case the Court of Appeal looked at whether the mind sets of all those involved in the decision to terminate a consultant's services should have been examined in order to decide whether age discrimination had occurred.
The Claimant was a former employee of CLFIS Ltd, who became their Chief Medical Officer under a consultancy agreement. After hearing a presentation highlighting the deficiencies in the Claimant's performance the respondent's General Manager decided to terminate the consultancy agreement. The Claimant brought a claim in the employment tribunal alleging that she had been directly discriminated against, and they had terminated the agreement because of her age (she was 73 years old).
The tribunal found that the General Manager had taken the decision alone and not because of the Claimant's age. She appealed to the EAT, saying that although the General Manager's reasoning may not have been influenced by her age, those who had given the presentation to him had set about their task with a discriminatory mind set, and the tribunal had erred in not considering that. The EAT agreed with the Claimant; they found that it was not enough for the respondent just to show that the person taking the decision not to renew her consultancy agreement did not do so because of her age. The respondent also needed to demonstrate that the mind set of those influencing the decision-maker had not been biased against the Claimant because of her age.
The Court of Appeal has now overturned this decision. They have held that in order for discrimination to be established the individual employee who does the act complained about must have themselves been motivated by the protected characteristic. So in this case the question was: Was the General Manager motivated by her age when he took the decision to end her consultancy agreement? In a case where it is alleged someone else has provided "tainted" information on which the decision maker bases their decision, the correct approach is to treat that other person's conduct as a separate act from which separate losses flow.
What this means for employers
The decision of the EAT was unhelpful as it increased the number of individuals an employer may need to call to defend a decision. The Court of Appeal has now made it clear that an alleged discriminatory act cannot be viewed as having been carried out by one person (innocent of discriminatory motivation) on the basis of another's motivation. The case also highlights the importance of ensuring that bias, whether conscious or unconscious, is challenged at all levels of an organisation. This will reduce the chance of accusations of discriminatory behaviour being levelled at the organisation.
CLFIS(UK) ltd v Reynolds