Friday, 1 May 2015
CLFIS v Dr Mary Reynolds judgment 'Focus on the discriminator'
Is it discriminatory to dismiss where a manager has decided to dismiss an employee on the basis of an adverse report about her from another employee who is motivated by her age?
No, held the Court of Appeal in CLFIS v Dr Mary Reynolds Neutral Citation Number:  EWCA Civ 439
Crucial paragraph in the judgment of Lord Justice Underhill ::
In my view the composite approach is unacceptable in principle. I believe 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. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way the Regulations work, rendering E liable would make X liable too: see the analysis at para. 13 above. To spell it out:
(a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and – assuming we are applying the composite approach – that act was influenced by Y's discriminatorily-motivated report.
(b) X would be an employee for whose discriminatory act E was liable under regulation 25 and would accordingly be deemed by regulation 26 (2) to have aided the doing of that act and would be personally liable.
It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.