HR decisions in any organisation are rarely made in isolation. A decision taken by one employee is often influenced by others’ opinions. In Reynolds v CLFIS (UK) Limited, the EAT held it was wrong just to focus on a single decision-maker’s mental processes when considering whether a termination was discriminatory.
Dr Reynolds’ consultancy was terminated by a manager, Mr Gilmour, following internal feedback and a report identifying deficiencies in her services. Dr Reynolds claimed age discrimination.
In direct discrimination claims, tribunals must consider the reason(s) for the treatment complained of. Sometimes the reason is inherent in the act itself (an example given in the case was where someone put up a sign saying 'no blacks admitted') and intention/motive is irrelevant.
Sometimes, the act is not inherently discriminatory but is made so by conscious or unconscious discriminatory motivation/'mental processes'.
The tribunal focussed entirely on Mr Gilmour’s mental processes, finding that the termination was not related to Dr Reynolds' age.
The EAT held that the mental processes of others whose views had a significant influence on the decision should be reviewed for age bias. Relevant factors included:
- as the burden of proof had shifted, CLFIS had to prove the decision was in no sense whatsoever on the ground of age;
- the claim was against CLFIS, not the decision-maker; and
- CLFIS’s liability for discrimination by its employees.
It is logical to take into account significant influencers’ thought processes. This affects who should give evidence in subsequent litigation. In Reynolds, those who prepared the report on which the feedback was based were relevant but what about those they consulted? The EAT said that tribunals can be expected to bring common sense to bear on who is relevant but this may not always be clear-cut.