Reynolds v CLFIS (UK) Ltd

In a direct discrimination claim, the tribunal must identify the ground or reason for the treatment. Where the treatment is not inherently discriminatory, that inquiry may require examination of the mental processes leading to it.

Where the burden of proof has shifted to an employer, the employer must show that the treatment was in no sense whatsoever on the prohibited ground. That inquiry is not confined to the formal decision-maker. It must also address the mental processes of persons whose views significantly influenced the decision. The inquiry is limited by common sense and the balance of probabilities; it does not require an investigation of every person remotely connected with the decision.

The claimant, a medical insurance specialist working under a consultancy agreement, alleged that the respondent terminated the agreement because of her age. The Employment Tribunal found that the burden of proof had shifted but considered only the mental processes of the senior manager who formally decided to terminate the agreement.

The Tribunal concluded that the decision arose from dissatisfaction with the service provided and dismissed the claim. The claimant appealed, arguing that the Tribunal should also have examined the mental processes of persons whose presentation and views had significantly shaped the decision. The central issue was whether the reverse burden of proof required that wider inquiry.

1. Appeal allowed. The Employment Tribunal had correctly identified the general principles of direct discrimination, as summarised in Amnesty International v Ahmed [2009] ICR 1450. The question was the ground or reason for the treatment. Where the act was not inherently discriminatory, the Tribunal had to examine the mental processes which led to it.
2. The formal decision-maker was Mr Gilmour. However, it was common ground that his decision had been shaped and informed by the presentation and views of Mr McMullan and Mr Newcombe. Since the claim was against the respondent organisation, and the burden under Regulation 37 had shifted, the respondent had to prove that the termination was in no sense whatsoever on grounds of age.
3. That required examination of the mental processes of persons whose views had a significant influence on the outcome, not merely those of the person who made the final decision. The approach was consistent with Nagarajan v London Regional Transport [2000] 1 AC 501, concerning significant influence, and with the reverse-burden guidance in Igen Limited v Wong [2005] ICR 931.
4. The inquiry did not involve infinite regression. Tribunals should apply common sense and the balance of probabilities. In this case, however, identified persons had played a significant part in the process and their mental processes had not been examined. That was an error of law.
5. The separate challenge to the Tribunal’s factual findings about Mr Gilmour’s alleged stereotypical assumptions was rejected. The case was remitted to a differently constituted Employment Tribunal in the Bristol region. In selecting that course, the Tribunal’s fundamental legal error, the risk of apparent bias, and the lapse of time were material, applying Sinclair Roche & Temperley v Heard [2004] IRLR 763.

• Employment Tribunal, Bristol: dismissed the claimant’s age-discrimination claim in a decision sent on 4 April 2013.
• Employment Appeal Tribunal: allowed the appeal and remitted the case to a differently constituted Tribunal in the Bristol region.