Where a decision to dismiss is based on ‘tainted information’ (supplied to the decision-maker with discriminatory intent), but the decision-maker has no discriminatory motivation themselves, the only act of discrimination is the provision of information and not the decision itself. The provision of information and the ultimate decision are separate acts and if the claimant has only pleaded discrimination in relation to the ultimate decision, it is only the thought processes of the decision-maker that matter – they cannot be found to have discriminated based solely on someone else’s motivation.
In CLFIS v Reynolds, the claimant pleaded that X had decided to dismiss her because of her age; the tribunal had found as a matter of fact that X had had no discriminatory motivation, although the reason why he had decided to consider whether to dismiss was an internal presentation from two other employees about the claimant’s performance, which the claimant suggested was motivated by her age. The Court of Appeal ruled that, because the claimant had only pleaded X’s act as discriminatory, and not the other two employees’ acts, the tribunal was right to consider only whether X was motivated by age.
A claimant will therefore need to ensure they plead all potential acts of discrimination contributing to the ultimate decision and seek amendments if new evidence comes to light during the case that an act complained of was based on an earlier discriminatory act by another employee.
Employers will welcome the clarification that the key witnesses will be those who took the decisions/acts about which complaint has been made, and they will not need to trace back decisions into the thought processes of other employees not pleaded, in case their tainted acts might have informed the ultimate decision.