Facts
This case deals with the extent to which the mental processes of those who are not the decision maker should be considered. The facts are available in our summary of the EAT case here.
The EAT ruled that it was relevant that the views of other employees had informed the decision to terminate a consultancy agreement.
CLFIS appealed to the Court of Appeal, on the grounds that the decision was not made jointly and so the views of others were not relevant.
Decision
CLFIS’s appeal was upheld. The Court of Appeal restored the Employment Tribunal decision and overturned the EAT’s decision.
The Court of Appeal said that if the decision to terminate had been made jointly, the motivation of all those involved would have been relevant. But the Employment Tribunal’s finding of fact was that the decision was made solely by one person. The question to consider was whether the decision was tainted by discrimination because, if it were, then it would be necessary to look at the motivation of others. However, the Court of Appeal said that the Employment Tribunal’s decision was “unassailable”.
The Court of Appeal went on to say that even if the mental processes of others were relevant, it was not Ms Reynolds’s case that the decision to terminate was made jointly. Her case was that the General Manager’s decision was motivated by age. The extent to which others were involved only became clear after witness statements were exchanged, so Ms Reynolds may have argued her case differently had she been aware of this at an earlier stage.
The Court of Appeal held that the EAT had misunderstood the principles set out in Igen v Wong. This case explains that, once a Claimant has set out facts from which discrimination could be inferred, it is then for the Respondent to show that it “in no sense whatsoever” discriminated against the Claimant. However, this does not mean (as the EAT had mistakenly considered) that the Respondent must show that discrimination was absent from every possible act in the chain of causation leading to Ms Reynolds’s termination.
The Court of Appeal also rejected an argument that an “ability to change” was related to age. It was simply an opinion of Ms Reynolds’s based upon the decision maker’s experience of working with her, rather than a stereotypical assumption of people Ms Reynolds’s age.
The Court of Appeal identified two possible approaches for dealing with “tainted information” cases such as this where a manager has dismissed an employee on the basis of adverse information given by another. The “composite” approach involves bringing together the manager’s act with the other’s motivation, whereas the “separate acts” approach involves treating the giving of adverse information as one act, then the dismissal as another.
The Court of Appeal held that the “composite” approach was unacceptable in principle. The Court of Appeal held this because such an approach would cause compensation to be payable for acts done but which failed to satisfy the definition of discrimination. The act would not have been done “because of” a protected characteristic. The only interpretation that is consistent with the legislation is the “separate acts” approach.
A copy of the judgment is available here.
CLFIS (UK) Ltd v Dr Mary Reynolds OBE [2015] EWCA Civ 439 (30 April 2015)