Direct discrimination: Making sure you claim against the right person

August 2015

The recent Court of Appeal decision in CLFIS (UK) v Reynolds, indicate that employees intending to bring direct discrimination claims should consider whether the evidence relied upon by the decision-maker which significantly influenced his decision, such as reports or appraisals prepared by others, can be shown to be discriminatory, and whether individuals whose views or reports have had a significant influence on the decision-make should be included as respondents.

Although this judgment deals with the law under the now repealed Employment Equality (Age) Regulations 2006, the relevant law is essentially the same under the Equality Act 2010 and therefore the principles are equally applicable to the law as it now stands.

Background law

Under the Equality Act 2010, a person directly discriminates against another person where:

  1. he treats him less favourably than he treats or would treat others, and
  2. he does so because of a protected characteristic, one of which is age

This replaces the now repealed Employment Equality (Age) Regulations 2005, where the less favourable treatment was required to be ‘on the grounds of’ age.  It is considered that the change of working in the Equality Act 2010 to has not made any material change to the relevant law.

It must be established that the protected characteristic is the cause of the treatment.

Uniquely, where the protected characteristic is age, an employer may avoid a finding of direct discrimination where the less favourable treatment can be shown to be a proportionate means of achieving a legitimate aim.

The facts

In CLFIS (UK) v Reynolds, the claimant, worked for the respondent, Canada Life, on a consultancy basis as the respondent’s Chief Medical Officer (CMO).

In late 2009, a report was prepared by two employees of the respondent which identified perceived deficiencies with the claimant’s performance and this provided the basis for a presentation to the respondent’s most senior manager in the UK.  The presentation did not expressly recommend dismissal, but this was the understanding that the senior manage took from the presentation.  As a result of the presentation, he decided that the claimant was not providing the respondent with the services it needed and could no longer be CMO.  The claimant was accordingly given notice that her consultancy agreement wold terminate.

The claimant brought a claim under the Employment Equality (Age) Regulations 2006 that the decision to terminate her contract was unlawful because it was taken on the grounds of age. The respondent argued that the termination was not on the grounds of age.

The tribunal dismissed the claim. It found that the senior manager genuinely held the view that the claimant was not providing the level of support required and would not make the necessary changes to enable her to do so.  His decision, therefore, was no inherently age-based.  The tribunal concluded that the principal reason for the termination of the contract was that the respondent was unhappy with the service provided by the claimant and there was no direct link between those deficiencies, as identified in the presentation, and the claimant’s age.  The senior manager genuinely believed from his own knowledge of the claimant that she was unlikely to change to adapt to the new requirements of the respondent and had not made any assumptions on age.

The EAT allowed the claimant’s appeal, holding that, in a direct discrimination claim, where the decision-maker’s decision to terminate has been shaped and informed by the views of others, the tribunal cannot focus entirely on the mental processes of the person who took the decision, but must also consider the mental processes of those other persons who had influenced the decision in a significant way.  The respondent appealed to the Court of Appeal.

The Court of Appeal allowed the respondent’s appeal and restored the employment tribunal’s dismissal of the claim.  This was not a case where there were joint decision-makers.  This was a case of ‘tainted information’ where an act which was detrimental to a claimant was done by an employee who was innocent of any discriminatory motivation but who had been influenced by information supplied, or views expressed, by another employee whose motivation was, or was said to have been, discriminatory.

The Court of Appeal’s judgment makes it clear that when considering claims of direct discrimination, the actions of the decision-maker must be considered separately from any acts and/or opinions of others who have influenced his decision.  A potential claimant may therefore wish to consider bringing an action against the influencer (and his employer) rather than the decision-maker.

If you require assistance of any employment law matter, then please contact our Employment Law expert, Albert Bargery.


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