Age discrimination – motivation of managers important

The Claimant was a chief medical officer in an insurance firm, engaged as a consultant. A number of senior managers had serious concerns regarding aspects of her performance and a report was produced identifying these. The conclusion was that her performance was not commensurate with the requirements of a modern day claims handling organisation; consequently the UK general manager took the decision that her contract should be terminated and duly did so. The Claimant claimed that the termination was due to age discrimination.

Although the Tribunal found that the decision to terminate the contract was discriminatory because there was no attempt to address her performance issues and she had generally been well regarded; and noted that age had been mentioned to her in discussions about her future, it nonetheless went on to dismiss the claim on the basis that it considered that the dismissing officer was genuinely motivated by her performance deficiencies and not by her age. The dismissing officer genuinely believed that she would not be able to change her ways of working but this was not based on stereotypical assumptions regarding age. Furthermore there were other medical officers in the company in their 60s and 70s and one who had worked until 99.

Before the EAT, the Claimant successfully argued that the Tribunal had been wrong to focus solely on the motivation of the dismissing officer and should have considered the other individuals who had contributed to the report which ultimately led to the termination of her employment and whether they had made aged based assumptions which had influenced the dismissing officer’s decision. This was particularly so where the burden of proof shifted to the employer and the claim was against the organisation and not the individual decision maker. Since the Tribunal had held that the burden of proof moved to the employer, it was for the organisation to prove that the decision to terminate her contract was not on the grounds of age. The EAT held that, in order to do this, it should properly have considered the motivation of other managers who influenced the decision to dismiss.

The interesting point about this case is that it moved beyond just considering the motives of the actual decision maker, where there is an absence of any discriminatory motive, to the motivations of those others who influence the ultimate decision. The key point is to look at why the employee was treated in the way that he or she was rather than whether there was a consciously discriminatory motive.

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.