In CLFIS (UK) Ltd v Reynolds the Claimant alleged that the termination of her consultancy agreement was discriminatory on the grounds of age. The Employment Tribunal (ET) had dismissed the claim on the basis that the decision-maker's decision was not tainted by age discrimination. This was overturned by Employment Appeal Tribunal (EAT), which held that the ET was wrong to focus only on the mental processes of the decision-maker in circumstances where it was common ground that other individuals had significantly influenced the decision. Allowing the appeal and restoring the ET's decision, the Court of Appeal has held that the correct approach is to consider distinct acts separately.
When considering discrimination claims, ETs must assess what are the grounds for the treatment in question. Where the act itself is not inherently discriminatory, it can be rendered discriminatory by the conscious or unconscious motivations which led to the act.
In this case, the Claimant, Dr Reynolds, had worked as the Chief Medical Officer for the Respondent under a consultancy agreement since 2006 (prior to this, she had been employed by the Respondent for over 20 years). In 2010, when the Claimant was 73 years of age, the Respondent’sUK General Manager took the decision to terminate the consultancy agreement with the Claimant, essentially on grounds of performance. The UK General Manager reached this decision after he had listened to a presentation, delivered by two of the Respondent’s employees, M and N, which had highlighted a number of deficiencies in the services provided by the Claimant.
The Claimant brought a claim alleging that the termination of the consultancy agreement was discriminatory on the grounds of age. However, at first instance, the ET was satisfied that the Respondent had shown that there were non-discriminatory reasons for the decision. The decision was not inherently discriminatory and so the ET assessed the mental processes of the UK General Manager. They decided that the decision was based on a belief that the Claimant’s services were deficient and that she would not change her approach. It was also relevant that after the agreement had been terminated, the Respondent went on the engage medical officers of a similar age to the Claimant.
The Claimant appealed the decision on the basis that the ET had erred in failing to consider the motivations of M and N, who had influenced the decision-maker.
The EAT allowed the appeal and remitted the case to a different ET. It held that held that the ET should have considered the mental processes of M and N. In reaching this decision the EAT concluded that:
- A discrimination claim could succeed if a prohibited ground had a significant influence on the action complained of, even if the ultimate decision-maker had not acted for a discriminatory reason.
- In order for the ET to properly assess whether the Respondent has shown that its decision was "in no sense whatsoever" on the prohibited ground, it was obliged to consider the mental processes of all those who had significantly influenced the treatment complained of (in this case, the decision to terminate the consultancy agreement).
Court of Appeal's decision
The Court of Appeal allowed the Respondent's appeal, holding that the ET had adopted the correct approach. On the facts, the decision to terminate the Claimant's agreement was made by the UKGeneral Manager alone. It could not be said to have been made "jointly" with M and N, despite the fact that they had influenced the decision. Importantly, the Court said: "Supplying information or opinions which are used for the purpose of a decision by someone else does not constitute participation in that decision".
Therefore, it was correct to examine the decision to terminate the agreement separately from the other actions in the lead up to that decision. As the UK General Manager did not act from discriminatory motives, the termination was not discriminatory.
The "separate acts" approach endorsed by the Court of Appeal means that claimants will need to plead each alleged discriminatory act separately, rather than asking an ET to take a "composite" view of all the actions in the chain of causation. On the other hand, where decisions are made jointly the ET will be able to assess the motives of all parties involved in that decision. A discriminatory motive by a co-decision maker would be enough to taint the overall decision.
This highlights the need for employers to ensure that decision-makers (e.g. in a disciplinary or grievance process) make their decisions alone and to clarify this in the communication of their decision. For example, care should be taken to avoid muddying the waters by using terms such as "we", rather than "I" (save where the decision is genuinely a joint decision).