Discrimination and the mind-set of the decision-maker

A recent Court of Appeal decision looked at discrimination when the decision-maker relied on others’ information. 

The case concerned the Chief Medical Officer at Canada Life, Dr Reynolds who was engaged under a consultancy agreement.  The consultancy was terminated by the general manager following a presentation by two other managers highlighting issues with her performance.  At the time of termination Dr Reynolds was 73 and she brought a claim for direct age discrimination.  

The Employment Tribunal looked at the general manager’s rationale for terminating the agreement and found that his decision was not driven by discrimination but by his genuine belief that Dr Reynold’s was not up to the job.  Dr Reynolds appealed to the Employment Appeal Tribunal on the basis that the Tribunal should have considered not only the general manager’s motivation, but also that of the two managers who had informed his decision in the presentation.  The EAT found in favour of Dr Reynolds and the employer appealed to the Court of Appeal which found in its favour.

The Court of Appeal’s decision was that as the Tribunal had found that the general manager alone had made the decision to dismiss, it was only his motivation that was relevant.  On the other hand, if the decision to terminate had been made jointly, the Tribunal would have had to consider the mind-sets of all of those involved, because if any of them had been driven by a discriminatory reason this would have been enough to taint the decision.  However providing information or opinions to help others was a separate action to be considered in its own right.

Where an employee can show that their employer has done something which in the absence of an explanation could constitute discrimination, the claim will succeed unless the employer can provide an explanation unrelated to discrimination.  However this did not mean that the employer had to show the absence of discrimination in every act that led up to the dismissal.