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How well do you understand the concept of direct discrimination?

Most of our readers are intelligent and well informed so the
answer is probably “quite well”. After all, the concept has been superbly
analysed by two former Presidents of the EAT in London Borough of
Islington v Ladele
[2009] IRLR 154 (Elias P) and Amnesty
International v Ahmed
[2009] ICR 1450 (Underhill P), and of course most
authoritatively by the Supreme Court in the Jewish Free Schoolcase [2010] 2 AC 728.

So here is a pub quiz question to test the extent of that
knowledge.  

A claimant (“C”) complains about a specific decision – say,
to terminate a consultancy agreement, although it could be to dismiss, or not
to promote, it does not matter. She asserts that the decision was taken on the
ground of the protected characteristic age, but again it could be race or sex
etc. The decision was taken by a sole decision maker (“X”), but his
decision was based on the views of another employee (“Y”) who had compiled
a report about C. There is prima facie evidence that X was indeed acting on the
ground of C’s age, so the burden of proof shifts against the employer
(“R”) against whom the complaint of direct discrimination is made.
 Is it sufficient to discharge the burden of proof and defeat C’s
complaint of direct age discrimination for R to show that X, the sole decision
maker, was not acting on the grounds of age? Or is it also in principle
necessary for R to show that Y, when compiling the report which significantly
influenced X’s views, was also not acting on the grounds of age? And if it is
in principle necessary to consider Y’s motivation as well, does it matter
whether any complaint had in fact been made about those views by C? 

In fact those are multiple questions but no matter…

The scenario in which the act complained of is taken by a sole
employee but is based on information provided by other employees is a familiar
one, and the discrimination statutes have been around for 40 years or so, so
you might think that the answers to those questions should be obvious.

Singh J provided answers in Reynolds v CILFIS (UK) Ltd[2014] ICR 907. He held that:

  • It was in principle necessary to consider
    the thought processes of Y, the report maker, as well as those of X, the
    ultimate decision maker. Otherwise “a real injustice might be done”
    to the C if the underlying report was based on reasons that were
    discriminatory and that report had a significant influence on the
    decision;
  • Support for that conclusion could be
    derived from the well- known speech of Lord Nicholls in
    Nagarajan v
    London Regional Transport
    [2000] 1 AC 501, in which he said at one
    point that “
    If racial grounds or protected acts had a significant
    influence on the outcome, discrimination is made out
    ”.
  • Because Y’s mental processes were in
    principle relevant it was necessary to consider them whether or not any
    particular complaint had been made about Y by C, as the claim was brought
    against the employer (who was just as responsible for Y’s actions as it
    was for X’s actions) and the burden of proof had shifted against the
    employer. Once the burden of proof had shifted it was for the employer to
    show that the impugned decision was “in no sense whatsoever” on the
    prohibited ground: see
    Igen Ltd v Wong [2005] ICR 931, and
    that entailed proving that Y’s thought processes were not tainted by the
    prohibited ground.

These answers were clear…but also troubling. The implications
for the conduct of discrimination claims were profound. Proving the actual
reasons for a sole decision maker’s decision can be tricky enough. But at least
the employer will know who it has to call to give the relevant evidence: the
decision maker. On the Singh J analysis, however, a Respondent who called only
that person (X), would be running a risk if the burden of proof was held to
have shifted against it. Because although X could prove that in fact he was not
acting on the prohibited ground, if the burden of proof shifted it would also
be necessary for the employer to prove that the thought processes of Y, whose
report influenced X’s decision, were also innocent. So it would be necessary to
call Y to give evidence as well, even if no complaint were made about his
thought processes. And if Y’s decision was itself based on information provided
by other employees (Z and others) logically they too would have to be called.
So even if a discrimination claim could not be simpler – a complaint about a
single decision taken by a single person – it might be necessary to call
multiple additional witnesses to prove that their prior decisions were in no
sense whatsoever tainted by the protected characteristic. 

The Court of Appeal however has now overturned the decision of
the EAT, in CLFIS (UK) Ltd v Dr Reynolds [2015] EWCA Civ 439. The
sole substantive judgment is given by Underhill LJ and it is characteristically
illuminating. He held that as a matter of principle it was necessary to consider
only the thought processes of the sole decision maker. Although the problem of
near endless regression – i.e. the problem identified above of having to call
multiple witnesses to give evidence about prior acts – featured heavily in
argument, Underhill LJ’s decision ultimately was based on a different
consideration: the fact that it is possible to sue an individual as well as a
corporate respondent for acts of discrimination. He said this (at para.
36): 

…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…. rendering
[the employer] liable [for the act complained of] would make X liable too… It
would be quite unjust for X to be liable to C where he personally was innocent
of any discriminatory motivation
.”

He also held that the burden of proof provisions did not have
the effect of requiring the employer to prove that Y’s decision making was not
tainted by the protected characteristic even if no complaint had been made
about that decision. He held (at para. 51) 

The effect of [the burden of proof] provisions was not to place
a blanket obligation on [the Respondent] to prove the absence of discrimination
in every act of every employee that formed part of the chain of causation
leading to the act complained of. On the contrary, the starting-point is
that the Claimant was required to prove a prima facie case (in the sense
explained in Madarassy) that the termination of her contract was
discriminatory. Whether she reached that stage had to be decided by
reference to the specific case which she advanced.  …. To put it
another way, the burden of proof provisions apply for the resolution of the
factual issues raised before the Tribunal: they cannot operate to extend those
issues. 

Conclusion

The CA’s decision will obviously be welcomed by Respondents, but
perhaps also by tribunals, who have the onerous task of trying to keep within
reasonable bounds unwieldy discrimination complaints. The implication of the
decision for Claimants is clear: it is necessary to identify with precision the
specific act or acts complained of (whether it is the ultimate decision, the
decision on which it was based or both), and to ensure that each specific act
complained of is appropriately pleaded. Respondents now know that it will be
necessary to call those responsible for the acts complained of to explain their
reasoning, but that it will not be necessary to engage in a form of legal
archaeology, picking over historic decisions that formed part of the chain of
events leading to the ultimate decision, and wondering whether it is necessary
to call those decision makers, even though no complaint has been made about
their decisions. And individual respondents can breathe a sigh of relief that
they cannot be held responsible for specific acts of discrimination on the
basis of others’ impugned mental processes.

There it is. Quiz over… now for a drink!

Daniel Tatton Brown (instructed
by Sarah Lamont and Jane Wallenstein at Bevan Brittan LLP) acted for the
successful appellant in CLFIS (UK) Ltd v Dr Reynolds [2015] EWCA Civ 439. The judgment can be found here.

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