CLFIS (UK) Ltd v Reynolds

In a direct discrimination claim based on an employee’s mental processes, the person who performed the impugned act must personally have been influenced by the protected characteristic. An employer’s liability cannot be constructed by combining an innocent decision-maker’s act with another employee’s discriminatory motivation.

Where discriminatory information causes an innocent decision-maker to dismiss someone, supplying that information may itself constitute a separate discriminatory detriment. The employer and informant may be liable for that act, including consequential dismissal losses, subject to causation and remoteness.

A tribunal need address only the discrimination case advanced before it. The statutory reversal of the burden of proof resolves pleaded factual issues; it does not enlarge them.

Canada Life terminated Dr Reynolds’s consultancy as Chief Medical Officer when she was aged 73. She alleged direct age discrimination. The Employment Tribunal found that Mr Gilmour alone decided to terminate the agreement. Although a prima facie case arose, it accepted his explanation that the decision concerned her working methods and his personal assessment that she would not change.

The Employment Appeal Tribunal allowed her appeal and ordered a rehearing before a fresh tribunal. It held that the Tribunal should also have examined whether the employees whose information influenced Mr Gilmour were discriminatorily motivated.

Canada Life appealed. The principal issues were whether an innocent decision-maker’s act could be combined with another employee’s discriminatory motivation, and whether the Tribunal had been required to investigate a case concerning those other employees when no such case had been advanced.

1. Appeal allowed. The Employment Tribunal’s dismissal of the age discrimination claim was restored. Underhill LJ delivered the judgment, with which Jackson and Longmore LJJ agreed.

2. The Tribunal was entitled to find that Mr Gilmour was the sole decision-maker. Employees who supplied information and opinions influencing his decision did not thereby participate in making it. Had the termination been a joint decision, discriminatory motivation on the part of any joint decision-maker would have tainted it.

3. The Employment Appeal Tribunal’s composite approach was wrong in principle. Under the Employment Equality (Age) Regulations 2006, employer liability depends upon an identified employee or agent performing an act satisfying the definition of discrimination. The employee who performs the impugned act must personally be influenced by the protected characteristic. Combining an innocent decision-maker’s act with another employee’s discriminatory motivation would also expose the innocent decision-maker to personal liability through regulations 25 and 26.

4. The correct analysis in a tainted-information case is the separate-acts approach. A discriminatorily motivated adverse report may itself subject the claimant to a detriment under regulation 7(2)(d). If made during employment, it is treated as the employer’s act under regulation 25(1), while the informant may be personally liable under regulation 26. Loss caused by a resulting dismissal may be recovered as compensation for that discriminatory act, subject to ordinary questions of causation and remoteness.

5. The Tribunal nevertheless had no obligation to investigate the motivations of the employees who prepared the presentation influencing Mr Gilmour. The claimant had challenged only Mr Gilmour’s motivation. A tribunal commits no error by failing to decide a case that was not advanced.

6. Regulation 37 did not place a blanket obligation on the employer to disprove discrimination throughout every link in the causal chain. The burden shifted only upon the particular prima facie case established. The burden-of-proof provisions resolve the factual issues raised before the Tribunal; they do not expand those issues.

7. The Tribunal had adequately considered the alleged age-related stereotype. It found that Mr Gilmour’s belief arose from his personal knowledge of the claimant and her circumstances. A potentially unreasonable judgment that someone will not change does not, without more, establish that the judgment was age-related.

1. Court of Appeal (Civil Division): Allowed Canada Life’s appeal and restored the Employment Tribunal’s dismissal of the claim: [2015] EWCA Civ 439.
2. Employment Appeal Tribunal: Singh J allowed the claimant’s appeal on 21 May 2014 and remitted the claim for rehearing by a differently constituted tribunal. No citation is stated.
3. Employment Tribunal: Dismissed the direct age discrimination claim in a decision sent to the parties on 4 April 2013.