In this case, the EAT considered where liability for discrimination sits when decisions are made jointly and where a decision maker is influenced by others.
Chief Inspector Denby, who had been in charge of one of the five arms of the Territorial Support Group (TSG1), brought claims of sex discrimination against his employer, the Metropolitan Police Service (MPS). The tribunal upheld five out of eight of his claims of direct discrimination, and one claim of victimisation. In reaching its decision, it preferred the evidence of Chief Inspector Denby to that of the MPS witnesses, finding him to be "impressive and straightforward" while the MPS witnesses were evasive and disingenuous.
The MPS appealed to the EAT. The first ground of appeal was that the tribunal had failed properly to apply the burden of proof provisions in the Equality Act by taking into account the MPS's explanation for the alleged discrimination in determining whether or not the burden of proof had "shifted". The EAT dismissed this ground of appeal, saying that, according to the authorities, a tribunal must consider all relevant evidence at the first stage of the exercise, even if some of it comes from the employer and is explanatory in nature.
The MPS also appealed on the grounds that the tribunal had misapplied the "CLFIS principle". According to the CLFIS principle, where A is the ultimate decision maker in an act of alleged discrimination, but has been influenced by others, a tribunal should enquire only as to A's own mental processes. Conversely, where the alleged discriminatory decision is made jointly, the conscious and subconscious motivation of all those responsible must be considered as a discriminatory motivation on the part of any of them would be sufficient to taint the decision. Known as the "separate acts" approach, this involves treating the influence or views of the "influencer" as a discrete discriminatory act for which the employer is liable, rather than the decision itself.
The EAT found that the CLFIS principle needs careful handling, but that it had been properly applied in this case. In some cases, such as this one, where the claimant has found it hard to identify the correct decision maker, it may be appropriate for pleadings to be amended to target alternative decision makers. The EAT also commented that the CLFIS principle should not be allowed to become a means of escaping liability by deliberately opaque decision making which masks the identity of the true discriminator.
What does this mean for employers?
While this case does not establish any new law, it does have an impact on employers who use panels to make disciplinary decisions. If a panel decision is truly a joint decision then each decision maker's decision is an act for which their employer is potentially liable. This may well impact who needs to be called as witnesses in litigation where discrimination is alleged following a joint decision about an employee.