CLFIS (UK) Ltd v Reynolds

The Court of Appeal allowed the employer's appeal and restored the Employment Tribunal's dismissal of the claimant's age discrimination claim. The court held that where a single identified decision‑maker (here Mr Gilmour) took the impugned decision, an employment tribunal is not required as a matter of law to investigate the mental processes of other employees who supplied information or opinions to that decision‑maker unless the claimant actually advances a case that those persons were discriminatorily motivated. The judgment explains the correct analysis under the Employment Equality (Age) Regulations 2006: employer and individual liability are governed by Regulations 25 and 26, and the burden of proof regime in regulation 37 (as elaborated in Igen and Madarassy) applies to the particular case actually pleaded. The court rejected a composite approach which would attribute another employee's discriminatory motive to the decision‑maker; instead such "tainted information" should normally be treated as a separate discriminatory act by the informant for which the employer may be liable under regulation 25.

Background and parties. Dr Mary Reynolds (the respondent) was a long‑standing chief medical officer/consultant to CLFIS (UK) Ltd ("Canada Life", the appellant). Her consultancy agreement was terminated in June 2010 and she brought claims in the Employment Tribunal for unfair dismissal and direct age discrimination under the Employment Equality (Age) Regulations 2006. The ET dismissed unfair dismissal at a preliminary stage and, after a four‑day hearing, rejected the age discrimination claim on 4 April 2013. Singh J in the Employment Appeal Tribunal allowed the claimant's appeal on 21 May 2014 and remitted the case to a fresh tribunal. Canada Life appealed to the Court of Appeal.

Nature of the claim / relief sought. The claimant alleged that the termination of her consultancy was direct age discrimination under Regulation 3(1) of the 2006 Regulations and relied on the burden of proof provisions in regulation 37. The ET found that Mr Gilmour was the sole decision‑maker and concluded, after applying the burden of proof analysis (Igen / Madarassy), that although a prima facie case was made as to Mr Gilmour, Canada Life had shown a non‑discriminatory explanation. The EAT held that the tribunal should have investigated whether the mental processes of those who produced the adverse "Bristol" presentation (notably Mr McMullan and Mr Newcombe) were discriminatorily motivated because their input had significantly influenced Mr Gilmour.

Issues framed by the Court of Appeal.

• Whether an employment tribunal must as a matter of law examine the motivation of employees who supplied information to a sole decision‑maker where the claimant has not advanced a case that those employees were discriminatorily motivated.
• Whether the correct legal analysis is a "composite" approach (attributing an informant's discriminatory motive to the decision‑maker) or a "separate acts" approach treating the informant's conduct as a discrete discriminatory act under regulations 25 and 26.
• Whether the ET inadequately considered whether the employer's belief that the claimant could not change her ways was itself an age‑related stereotype.

Court’s reasoning and conclusions. The Court of Appeal endorsed the Employment Tribunal's factual finding that Mr Gilmour was the sole decision‑maker and held that it was open to the tribunal to treat the matter on that basis. The court rejected the composite approach as inconsistent with the statutory scheme because it would produce the unfair result of making an innocent decision‑maker personally liable for discrimination based solely on another person's motive. The appropriate analysis is the separate acts approach: an informant's discriminatory report can be a discriminatory act by that informant which, if done in the course of employment, is attributable to the employer under regulation 25 and gives rise to both employer and individual liability (with the reasonable‑steps defence available to the employer). Crucially, the Court held that a tribunal is only required to investigate the motivation of others whose input influenced the decision‑maker if the claimant in fact advances such a case; it is not an automatic obligation flowing from the burden of proof provisions. Applying that principle, the Court found the claimant had not advanced a case before the ET that the authors of the Bristol presentation were discriminatorily motivated, so the ET did not err in focusing on Mr Gilmour. The ET had also adequately addressed the argument that the employer's belief about the claimant's inability to change was age‑stereotyped. The Court allowed the appeal and restored the ET's dismissal of the claim.

Appeal allowed. The Court of Appeal held that the Employment Tribunal did not err in law in focusing on the mental processes of the sole decision‑maker (Mr Gilmour) because the claimant had not advanced a case that those who provided the adverse information were discriminatorily motivated. The court rejected a composite approach attributing another employee's discriminatory motive to the decision‑maker and explained that such prior tainted information should normally be treated as a separate discriminatory act by the informant under Regulations 25 and 26; consequently the EAT was wrong to remit on the ground that the tribunal should have examined the motivation of the authors of the Bristol presentation.

Employment Tribunal (Bristol) dismissed the age discrimination claim in a Judgment dated 4 April 2013. The claimant's appeal to the Employment Appeal Tribunal was allowed by Singh J on 21 May 2014, who remitted the claim to a fresh tribunal. The Court of Appeal allowed the employer's appeal on 30 April 2015 and restored the Employment Tribunal's decision dismissing the claim ([2015] EWCA Civ 439).