Facts
Dr Reynolds was engaged under a consultancy agreement dated 5thJune 2006 as Chief Medical Officer and Underwriting Consultant for CLFIS. Dr Reynolds was 73 years of age when the 2006 consultancy agreement was terminated on 31st December 2010. She had worked for Canada Life for a total of 42 years.
The consultancy agreement signed in 2006 was terminable on three months’ notice. Dr Reynolds provided her services from home.
CLFIS claimed that Dr Reynolds had not been providing an effective service for some time prior to 2010, due to her unwillingness to attend the company’s offices for meetings (they claimed that she had not attended in the preceding 10 years) or engage with other members of staff for training and development purposes. Dr Reynolds did not use email and required all papers to be sent by fax or post but not by recorded delivery (as she did not wish to have to leave the house to collect mail if she was out when it was delivered). Turnaround times for advice were often delayed and advice would only be provided over the phone to assessors rather than in writing which could often lead to mistakes. Dr Reynolds also resisted the engagement of a wider panel of medical experts.
CLFIS decided to gradually reduce Dr Reynolds’s commitment under her contract rather than activating the three month notice period under the consultancy agreement. This was out of respect for Dr Reynolds’s medical expertise in the field and her long period of service for the company.
CLFIS set up a meeting with Dr Reynolds to discuss a “succession planning requirement by the FSA in relation to the claimant’s CMO role”. Prior to the meeting Dr Reynolds had confirmed with the FSA herself that no such “success planning requirement” existed. Also prior to the meeting, CLFIS called Dr Reynolds and made numerous references to her age. This telephone call and the subsequent meeting were covertly recorded by Dr Reynolds. Following the meeting, Dr Reynolds was informed of the specific concerns held about her services.
In June 2010 CLFIS wrote to Dr Reynolds and set out in clear terms that the role of CMO was to change going forward and that she was to be served notice on the current agreement. She was further informed that CLFIS would like her to remain as the CMO on the individual claims portfolio for the remainder of 2010 and into 2011.
Dr Reynolds claimed unfair dismissal and direct age discrimination following the termination of the 2006 agreement, although the unfair dismissal claim was withdrawn prior to the hearing.
ET decision
The ET dismissed Dr Reynolds’s claim of direct age discrimination.
The parties agreed that, because of the date of Dr Reynolds’s complaint, the Employment Equality (Age) Regulations 2006 (EE(A)R) would apply to this case rather than the Equality Act 2010.
CLFIS did not raise any defence of objective justification. The only question to be addressed by the ET was whether Dr Reynold’s was treated less favourably on the grounds of age.
The ET held that the motivation of the discriminator is not relevant onceit is established that the cause of the treatment is discriminatory as per Lady Hale in R(E) v JFS [2010] IRLR 136: ‘it matters not that his intention may have been benign’.
The ET concluded that the less favourable treatment complained of by Dr Reynolds (i.e. the termination of the 2006 consultancy agreement) was not inherently age based. It was found that CLFIS did consider that Dr Reynolds was unlikely to change and adapt to the new ways of working that CLFIS wished to put in place for the CMO or its equivalent. It was accepted that this view could have been based on a stereotypical assumption about someone of the claimant's age, but that it was necessary to consider the circumstances and CLFIS's thought processes before reaching the conclusion that it was.
The ET decided that, in accordance with Regulation 31 of the EE(A)R, Dr Reynolds had successfully discharged the burden of proof onto CLFIS to establish an explanation for the less favourable treatment that was not an unlawful one. This was due to the underhanded way in which CLFIS attempted to terminate the contact, the fact that Dr Reynolds’s work itself was very highly regarded and the references to age made by CLFIS during the phone call to Dr Reynolds.
The ET concluded that the principal reason for termination of the contract was that CLFIS was unhappy with the service provided by the claimant under the 2006 consultancy agreement. This was made clear from the documentation as well as CLFIS's evidence that, despite their high regard for Dr Reynold’s experience and abilities, the manner in which the service was provided did not meet their requirements and had not done so for a considerable period of time.
The ET noted that CLFIS should not have approached this issue in such an underhanded manner. The ET found that succession planning was not the true reason for the termination of Dr Reynold’s contract. The ET concluded that CLFIS had approached the issue in this way in order to avoid confrontation with Dr Reynolds and preserve a working relationship going forward.
The decision is available here.
Dr M Reynolds -v- 1) CLFIS (UK) Limited 2) The Canada Life Group (UK) Limited 3) Canada Life Limited, Bristol Employment Tribunal 1400678/2011
NB this case was appealed to the EAT. The judgment, and a summary of it, is available here.