Establishment of discrimination – motivation of decision making

Ms Reynolds was a medical officer who worked under a consultancy agreement. As a result of views presented to the general manager by other staff regarding certain problems with the Claimant’s performance, her consultancy agreement was terminated. She was 73 years old. She brought an Employment Tribunal claim on the basis that the termination of her engagement was direct age discrimination.

The Employment Tribunal found that the real reason for her dismissal was unsatisfactory performance based on the knowledge of her work and personal circumstances over many years, and not because of her age. The EAT held that the Tribunal should not have focussed solely on the decision of the general manager and his thoughts but also on those who had provided him with input as to her performance; and remitted the case back to a differently constituted Tribunal.

The Court of Appeal restored the Employment Tribunal’s original decision on the basis that they considered the Tribunal had been correct to only consider the motivation of the individual who took the decision to dismiss. It held that if the decision to terminate the contract had been made jointly by the general manager and others, the motivation of all concerned would have had to be considered – but this had not been the case and it was only the general manager who took the decision. The Tribunal had found that he had come to the decision on the basis of information provided to him to him by other employees, some observations of which were allegedly discriminatory; but this was not the same as them being parties to the decision. The Court of Appeal did admit that it might be difficult to distinguish between the two situations, albeit it held that the Tribunal was entitled to take into account the fact that the general manager made the relevant decision on his own and his own reasons for doing so were not discriminatory. The correct approach to a case in which a decision was made on tainted information was to treat the conduct of the person supplying the tainted information i.e. allegedly discriminatory in this case, as a separate act from which loss could flow as long as it was not too remote. This is because liability for loss can only flow from the person directly responsible for the act which caused the discrimination. The individual employee who did the act complained of must have been motivated by the protected characteristic concerned and cannot be responsible for someone else’s motivation.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.