Employment Law Cases
Discriminatory dismissals: identifying decision maker
A decision to dismiss based on tainted information given by a line manager to the dismissing manager could not make the dismissal discriminatory unless the dismissing manager was motivated by the relevant protected characteristic (here pregnancy).
Not long after she started work with AO Ltd, Ms Ferridge-Gunn (FG) had a meeting with the managing director (B) and her line manager (C) where concerns about her performance and attitude were raised. The following week FG told C that she was pregnant. At a follow-up meeting two days later regarding FG’s performance issues, it was agreed that there had been some improvement but that there were still issues with her attitude. FG took two days’ sick leave with morning sickness. While she was absent, C found that she had not processed some documents. She told B that FG had misled him by telling them that she had made progress. FG’s failure to process the documents had actually been because of her morning sickness, so this was an unfounded allegation. C also made unsympathetic and ignorant comments to FG when she was suffering from morning sickness such as ‘is it a virus’, ‘is it contagious’, and ‘stop faffing’. At a further meeting FG was dismissed for ‘below par’ performance and because her employment ‘was not working out’. B asserted that the reason for her dismissal was because FG had misled him. A tribunal upheld FG’s claim for pregnancy discrimination under s. 18 of the Equality Act 2010. C had advised B that a continuation of FG’s role was unsustainable and that B made the decision to dismiss after this advice and relied upon it – that advice was influenced by FH’s pregnancy thus a s. 18 claim was made out. The employer appealed. It argued that the tribunal had erred by failing to separate B’s role, as decision maker, from that of C who had provided information to him, and that it had failed properly to identify or consider the reason B decided to dismiss her.
The appeal was allowed.
The problem with the tribunal’s decision was it hadn’t been referred to an important case (Reynolds v CLFIS) where the Court of Appeal made it clear that the person alleged to have carried out the discriminatory act must have been motivated by the protected characteristic in question. An act cannot be discriminatory on the basis of someone else’s motivation. The tribunal hadn’t analysed who decided to dismiss and whether they were influenced by FG’s pregnancy. Was the dismissal decision solely B’s or also C’s? If B, was he motivated by the pregnancy? The case was sent back to the same tribunal to think again.
This case doesn’t establish anything new as such – rather it’s a useful reminder that in a claim under the Equality Act, an act will only be discriminatory if the person carrying out the act has a discriminatory motive (either conscious or unconscious) – and this will always depend on the specific facts of each case.
It’s also a reminder of the difference between discrimination and whistleblowing unfair dismissal claims. In Royal Mail v Jhuti the Supreme Court stated that tainted information given to the decision maker can, in certain instances, be attributed to the decision maker when deciding if the reason for dismissal was automatically unfair for having made a protected disclosure.