In Reynolds v CLFIS (UK) Limited Mr Justice Singh, sitting in the Employment Appeal Tribunal, considered the motivations of individuals, conscious or subconscious, that can lead to discrimination.
Dr Reynolds OBE was employed by Canada Life from 1968 to 1992 as a doctor and insurance expert and, latterly, as the Company’s chief medical officer. In 1992 she was made redundant but continued working on a consultancy basis. However in 2010 the consultancy agreement was terminated by Canada Life. A Mr McMillan had made a presentation to Mr Ian Gilmour, the Company’s most senior employee in the UK. As a result of the presentation Mr Gilmour decided that Dr Reynolds was not delivering the service required and could not remain in her post as chief medical officer. Following discussions between others including the HR manager it was decided that a clean break was required by dispensing with her services altogether.
Dr Reynolds believed that the decision was prompted by age discrimination. At the date of termination she was 73 years old and had worked for Canada Life for 42 years. At the resulting employment tribunal hearing all attention focused on the mindset of the person who took the decision to dismiss. The claim failed and Dr Reynolds appealed on the basis that analysis of the decision to dismiss should not have been confined only to the person who ostensibly took the decision.
On appeal it was acknowledged that the decision to terminate the contract “had been shaped and informed by the views of other persons, in particular a presentation given to the eventual decision-maker”, Mr Gilmour. Accordingly it was necessary to consider the mental processes in the context of age bias not just of Mr Gilmour but also others in the organisation whose views might have had a significant influence on the decision.
It is not difficult to think of many situations in the employment context in which this issue may arise. For example, the actual decision to terminate an employee’s contract may be taken by a senior manager, indeed it may be that, within the structure of the relevant employer, only that manager has the power of dismissal. However, that person may have no personal knowledge of the employee and may have to rely entirely on reports which have been prepared by others, for example about an employee’s performance or conduct. Mr Pitt-Payne submits that, if the mental processes of those who prepared such reports are based on discriminatory grounds, then in principle the Tribunal must examine those mental processes and cannot confine itself to those of the eventual decision-maker alone. Otherwise a real injustice might be done, where for example the authors of the underlying reports are acting for reasons which are discriminatory and their reports have a significant influence on the decision to dismiss.
Accordingly the appeal succeeded and the case was remitted to a different tribunal for reconsideration. The Employment Appeal Tribunal also pointed out that:
- it was the responsibility of the employer to prove that the decision made was nothing to do with age;
- the claim was against the employer as a whole and not just the person making the decision to dismiss; and
- the employer was liable for discriminatory acts by its employees.
The case is a useful reminder that employers cannot avoid obligations by seeking to isolate the decision making process to the person providing notification of the dismissal. This should be borne in mind in particular in the context of discussions at board meetings and other similar circumstances.