Sitting as a decision-maker on a disciplinary panel is an unenviable task. Those taking up the responsibility play a key role in determining the fairness of the ultimate decision reached. If the decision was challenged, it would be he or she who would be required to explain the reason for their decision. So what happens if the evidence that is relied upon in making the decision is tainted by discrimination or whistleblowing?

This was the question in two recent cases – reaching opposite conclusions.

When it comes to discrimination, it’s the decision-maker’s mind that counts

Last year the Court of Appeal considered this issue in the context of discrimination in CLFIS (UK) v Reynolds. The case concerned the dismissal of Dr Reynolds following concerns about her performance. The Tribunal found that those concerns did not arise from the quality of her work, but from her ways of working – with one of the concerns being that she worked from home principally to care for her disabled sister.

The decision-maker in this case was Mr Gilmour. He made the decision to dismiss Dr Reynolds following a series of presentations, including one from the Head of Dr Reynolds’ division (Mr McMullan) which highlighted perceived concerns about her performance. These concerns included her not attending the company’s Bristol office which meant she had limited input in staff training and development and that face to face discussions had to be conducted at her house in Wales. The Tribunal found that whilst Mr McMullan was aware that these issues were related to Dr Reynolds’ need to care for her disabled sister, Mr Gilmour was not.

The question was whether the fact that information supplied to Mr Gilmour (and on which he made his decision) was potentially discriminatory rendered the decision to dismiss discriminatory, even though Mr Gilmour was unaware of this.

The Court of Appeal held that it did not. In its judgment the correct approach was to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it. As the presentation itself did not contain any overt indication of any discriminatory motivation on the part of its authors, it was right to limit consideration of whether the decision to dismiss was discriminatory to the mind-set of Mr Gilmour. Since Mr Gilmour’s reasons were found not to be discriminatory, the decision to dismiss was similarly not an act of discrimination.

As a note of caution the Court of Appeal was keen to stress that had this been a case of a joint decision, one involving Mr Gilmour and the Head of Dr Reynolds’ division, the latter’s motivation would certainly have been relevant.

It is also important to stress that Dr Reynolds’ claim did not assert that Mr McMullan’s act of preparing the presentation was itself discriminatory. Had it done so it is possible that Dr Reynolds may have succeeded in showing that this was discriminatory and, potentially, that the losses that flowed from it (including her losses arising from dismissal) should be recoverable – subject to the rules on causation and foreseeability.

Whistleblowing – a different story

The Court of Appeal’s rationale in Reynolds would appear, at first blush, to be readily applicable to other areas in which a decision-maker is influenced by information provided by a third party. Not so, when it comes to whistleblowing, the Employment Appeal Tribunal has now held.

This followed from the decision in Royal Mail Group v Jhuti. Ms Jhuti worked in the Market Research unit of the Royal Mail Group. During her probationary period she raised concerns about what she perceived to be an internal policy and regulatory breach. She raised these concerns to her manager Mr Widmer.

Mr Widmer was not supportive and encouraged her to withdraw her concerns, which she did by email. The Tribunal found that Mr Widmer then sought to make life difficult for Ms Jhuti. He subjected her to an intensive performance management programme, and set her an ever-changing and unattainable list of requirements. He then emailed HR to say that Ms Jhuti was not up to expectations. In the meantime Ms Jhuti contacted HR to complain about Mr Widmer’s treatment of her and that she felt it was because she had raised her concerns to him in the first place. (Both this and Ms Jhuti’s original disclosure were found by the Tribunal to be qualifying disclosures for the purpose of whistleblowing legislation).

A review of Ms Jhuti’s employment was undertaken by another manager, Ms Vickers. In assessing Ms Jhuti’s position she spoke with Mr Widmer. He explained that Ms Jhuti had raised concerns to him, but that she has misunderstood the situation and withdrew those concerns, showing her a copy of Ms Jhuti’s earlier email. Due to Ms Jhuti’s absence due to illness, Ms Vickers did not meet with Ms Jhuti.

Following her review, Ms Vickers decided to terminate Ms Jhuti’s employment, concluding that she had not met the standards required and was unlikely to do so. This decision was upheld following an internal appeal.

The Tribunal looked at the decision in Reynolds and concluded that it was only what was in Ms Vickers’ mind that was relevant. The fact that the information provided by Mr Widmer was influenced by Ms Jhuti’s whistleblowing was irrelevant – even though, as the Tribunal found, his actions made the decision to dismiss inevitable.

The EAT said this was the wrong approach. The question was what was in the mind of the employer when reaching the decision. Whilst in most cases this will be equated with the mind of the decision-maker, in some cases the knowledge of others (such as a responsible manager, HR representatives etc.) can properly be imputed to the employer. It held:

“a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them.”

Given Mr Widmer’s responsibility for Ms Jhuti and the key role he played in being informed of Ms Jhuti’s concerns and her treatment thereafter, his motivations needed to be taken into account. He was (in the Tribunal’s judgment) plainly motivated by Ms Jhuti’s whistleblowing and his evidence (on which Ms Vickers relied) made dismissal inevitable. This meant that even though Ms Vickers’ decision was not motivated by Ms Jhuti’s protected disclosure, her reliance on Mr Widmer’s evidence was enough to tie the dismissal to Ms Jhuti’s whistleblowing and render it automatically unfair.

Why the difference?

The key reason for the different outcomes in these cases arises from the different formation of the underlying legislation.

In a discrimination claim, the Equality Act 2010 focuses on each separate act of discrimination. Where the discriminatory act is the provision of tainted information to an otherwise non-discriminatory decision-maker, it is that act, rather than a subsequent dismissal, which gives rise to a claim. Whether the loss suffered as a result of the dismissal is recoverable will then depend on whether there is a break in causation between the provision of tainted information and the decision to dismiss, and whether those losses were a reasonably foreseeable consequence of the discriminatory act.

The position is different for whistleblowing. Under the Employment Rights Act 1996 the question is simply whether the reason for dismissal (or, if more than one, the principal reason) was that the employee made a protected disclosure. That requires assessment of what was in the mind of the employer when deciding to dismiss – something which may require looking beyond the mind of the decision-maker alone.

What can you take away from this?

Although the two cases reached different conclusions, they both illustrate that liability of an employer is intertwined with the actions of its employees. Clear policies and training, particularly for those with management responsibilities, are key to trying to avoid discriminatory influences pervading the decision-making process.