Decision-maker must be personally motivated by protected characteristics for dismissal to be discrimination

In Alcedo Orange Limited v Ferridge-Gunn [2023] EAT 78, the Employment Appeal Tribunal (“EAT”) held that in finding that the Claimant was discriminated against because of her pregnancy, the decision of the Employment Tribunal (“ET”) was unsafe. This was because the ET failed to consider the Court of Appeal’s decision in Reynolds v CLFIS (UK) Ltd [2015] ICR 1010. That decision requires the Tribunal to ascertain whether the decision-maker in a dismissal was personally motivated by the Claimant’s protected characteristics rather than having been innocently influenced by another individual’s discriminatory motives.

The law

Section 18(2) of the Equality Act 2010 (“EqA 2010”) provides that “a person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of her pregnancy, or (b) because of illness suffered by her as a result of it…”

As with the majority of discrimination cases, the ET must consider the mental processes of the decision-maker or decision-makers in order to ascertain whether the Claimant’s dismissal was discriminatory under s.18 EqA 2010.

Difficulties often arise in determining liability in dismissal cases where the decision-maker was innocent of any discriminatory motivation but was influenced by information supplied, or views expressed, by another employee whose motivation was discriminatory (“tainted information cases”).

In CLFIS (UK) Ltd v Reynolds EWCA Civ 439, Underhill LJ in the Court of Appeal stated that it is “fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation.” Underhill LJ went on to state that the correct approach in tainted information cases is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it.

Reynolds illustrates that it may be necessary to consider a number of stages in a process that results in a dismissal in order to determine whether the person or persons who took a decision in that process were motivated to some extent by the protected characteristics of the Claimant.

The Reynolds principle may result in difficulties for Claimants, as often a Claimant may only discover who made the decision or their respective roles at a later course of proceedings, e.g., disclosure or during a hearing. Kerr J in Commissioner of Police of the Metropolis v Denby UKEAT/0314/16 stated that the Reynolds principle “needs careful handling, but tribunals can avoid unfairness by permitting appropriate amendments… and allowing employees to target alternative decision makers where appropriate”.

Background facts

The Claimant began working for the Respondent on 27 January 2020 as a care manager. Shortly afterwards, she informed her employer that she was pregnant. She was then dismissed on 27 February 2020, having taken two days’ leave because of morning sickness on 24 and 25 February 2020. The Respondent claimed that she was dismissed because it was dissatisfied with her performance and she had failed to meet targets set for her. Further, the Claimant was not receptive to feedback and was deemed to not be a “good fit” for the company.

The ET found as a fact that the Claimant’s manager, Mrs Caunt, had asked the Claimant upon her return from her two-day sick leave whether her morning sickness was a “virus” or “contagious”. Mrs Caunt had also asked the Claimant “how much time off are you going to need for this” and said “sorry to be unsympathetic, but I’ve never been pregnant before” and “stop faffing and go home”.

Following the Claimant’s meeting with Mrs Caunt, she was dismissed by the Respondent’s Managing Director. He stated that he was dismissing the Claimant for poor performance and behaviour.

The ET found that the Managing Director had relied upon information given to him by Mrs Caunt and that “had she [the Claimant] not been absent for a pregnancy-related illness and then dismissed, she would by 28 February 2020 have completed the badges that she indicated on 21 February 2020 that she would complete” and that “the only thing that had changed since the meeting on 21 February 2020 when he [the Managing Director] was content with the progress that had been made by the claimant… was the claimant’s absence on 24 and 25 February with a pregnancy related illness, the information which Ms Caunt had discovered when the claimant was absent, and further that she had attended an antenatal appointment on the afternoon of 26 February 2020”.

The ET drew inferences from Ms Caunt’s unsympathetic comments towards the Claimant that she was influenced in her view of the Claimant by the fact she was pregnant and having to leave work because of her morning sickness. The ET also inferred that the Managing Director had relied on Ms Caunt’s views in dismissing the Claimant. 

EAT’s decision

HHJ Tayler held that the ET had erred by not analysing the case in accordance with the Reynolds principle in reaching its decision. In doing so, the EAT rejected the Claimant’s submissions that the dismissal was a joint decision between the Managing Director and Ms Caunt and also rejected the Respondent’s submission that the Managing Director was the sole decision-maker. The judge noted that “[w]hen one reads the key paragraphs of the judgment they point in different directions, which is unsurprising because the employment judge and tribunal members had not been referred to Reynolds and so had not grappled with how it should affect their decision-making”.

The EAT remitted the matter to the same ET, as the ET had made careful findings of fact but failed to analyse Reynolds because it was not referred to it. HHJ Tayler also noted that “it will be open to the claimant to apply to the employment tribunal for permission to amend her claim to bring a separate complaint in respect of the actions of Ms Caunt…and contend that those actions had a significant influence on her eventual dismissal, so that it might be asserted that the losses resulting from dismissal flowed from that detrimental treatment by Ms Caunt”.

What to take away

HHJ Tayler’s remarks about the Claimant’s ability to pursue an application to amend is significant as it demonstrates that Tribunals recognise the potential injustices that the Reynolds principle may result in in circumstances where claimants are unaware who the decision-maker was or how the decision-making process took place at the time they presented their ET1. This approach is consistent with the overriding objective, as Tribunals are required to deal with cases fairly and justly, including ensuring that the parties are on an equal footing.

A more flexible approach to applications to amend in tainted information cases would be welcomed, given that in many discrimination cases, claimants do not have sufficient information or evidence at the very outset to identify who the decision-maker was in a dismissal. Respondents, for example, may attempt to deliberately obscure the decision-making processes and refuse to confirm who the decision-makers were in a dismissal. Nevertheless, it is still wise for a claimant to carefully plead alternative bases for their claim if they suspect that their dismissal (or any other detrimental treatment) may have been influenced by the discriminatory motives of someone other than the ultimate decision-maker. Notwithstanding that the Tribunal may take a flexible approach, each case is fact-specific, and if a claimant suspects that the eventual decision-maker may have been influenced or misled by another individual’s discriminatory motives, they should specifically plead this.