Age discrimination: focus on decision-maker only
Author: Kenny Scott
Applies to: England, Wales and Scotland
The Court of Appeal has given guidance on how employment tribunals should approach the question of causation in discrimination cases.
A person suffers direct discrimination where they are treated less favourably because of a protected characteristic. This involves looking at the reason why the person was treated in a particular way.
A recent Court of Appeal case which concerned a claim for age discrimination, CLFIS (UK) Ltd v Dr Mary Reynolds, considered whether the thought process of the decision-maker was the key question for a tribunal to focus on or whether the thought process of others who may have influenced that decision needed to be considered?
In this case, the claimant had to show that she was less favourably treated by reason of age either because her termination was inherently discriminatory or age influenced the mental processes of the discriminator to any significant extent, either consciously or unconsciously.
The claimant was an employee for many years before becoming a consultant. She claimed that the decision to terminate her consultancy agreement was unlawful age discrimination.
Before the senior manager took the decision to terminate, he had received a series of presentations from other employees highlighting perceived problems with the claimant's performance.
The claimant succeeded in establishing a prima facie case that her age had been at least part of the reason why her consultancy agreement was terminated. This meant that the burden of proof passed to the employer to establish a non-discriminatory reason for its decision to terminate.
The employer argued that it was unhappy with the claimant's performance and did not think she would be able to change and that this was nothing to do with her age.
The employment tribunal accepted that the employer had not made an assumption on the basis of the claimant's age and the decision to terminate was based on the manager's knowledge of the claimant and his view about her inability to change, which was genuinely held.
In reaching that decision, the employment tribunal looked at the motivation of the manager alone and did not take into account the motivation of those who had prepared and made the presentations to him about the claimant.
Court of Appeal's decision
The Court of Appeal agreed with the tribunal's approach. It saw no basis for the manager's decision being discriminatory based on the motivation of others who did not take the decision and said that, "the individual employee who did the act complained of must himself have been motivated by the protected characteristic."
In reaching that decision, the Court of Appeal relied on two key considerations. First, that the claimant had not challenged the motivation of those behind the presentations about her. Secondly, given that individuals can be found personally liable for acts of discrimination, it would not be right to impose such liability based on the discriminatory motivations of others.
What does it mean for employers?
- Employers will be relieved that this case confirms it is the reasoning of the decision-maker which remains central.
- It will not, as a matter of course, be necessary to call as witnesses all employees involved in a chain of events which results in a claim to prove the absence of any discrimination.
- A joint or group decision to dismiss would lead to scrutiny of the motivation of all involved in any discrimination claim.
- Employers defending claims need to be clear which specific acts form the basis of the complaint and present their defence accordingly.