The case: Dr Reynolds was appointed by CLFIS (UK) Ltd as Chief Medical Officer under a consultancy agreement. Her agreement was terminated by her general manager following a presentation by other managers which raised various concerns about her performance. Dr Reynolds, who was 73 at the time, claimed that the termination of the agreement constituted direct age discrimination.
The Employment Tribunal approached this case by focusing on the mental processes of the general manager, notwithstanding the involvement of other managers. It concluded that the decision to terminate Dr Reynolds’ agreement was taken solely by the general manager and that there was a non-discriminatory reason for his decision.
The case was appealed to the Court of Appeal which upheld the Tribunal’s decision. It considered this to be a case of “tainted information” (e.g. where a manager decides to dismiss an employee on the basis of an adverse report from another employee (the “informant”) who is motivated by her age). When considering liability in such a case, the Court disagreed with the “composite approach”, which involved bringing together the decision-maker’s act with the informant’s motivation to assess the motivation for dismissal. It is a fundamental principle of discrimination legislation that an employer can only be liable where an individual employee/agent for whose act he is responsible has done an act which satisfies the definition of discrimination. The Court considered that the individual employee who did the relevant act must himself have been motivated by the protected characteristic. It would otherwise be unfair in this case for the general manager’s act to be held to be discriminatory on the basis of someone else’s motivation. The Court therefore concluded that the “separate acts approach”, which involves treating the informant’s report as a discrete discriminatory act, was correct in this case.
The impact: This useful decision is likely to be welcomed by tribunals and employers alike. Had the Court of Appeal preferred the composite approach, this would have potentially widened the field of employees being considered when assessing motivation in a discrimination case. The case does, however, highlight the importance for employers of choosing decisionmakers carefully. Claimants may still attempt to look beyond the relevant decision/act and allege that the information on which it is based was discriminatory, to capture each “separate act” within their claim. Ensuring there is clarity around the decision-making process in advance is vital.