“(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if— (a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but— (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.”
“25 Liability of employers and principals (1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval. (2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him. (3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description. 26 Aiding unlawful acts (1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description. (2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under regulation 25 (or would be so liable but for regulation 25(3)) shall be deemed to aid the doing of the act by the employer or principal. (3)-(4) ...”
“(1) This regulation applies to any complaint presented under regulation 36 to an employment tribunal. (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent— (a) has committed against the complainant an act to which regulation 36 being the provision conferring the relevant jurisdiction on the employment tribunal] applies; or (b) is by virtue of regulation 25 (liability of employers and principals) or 26 (aiding unlawful acts) to be treated as having committed against the complainant such an act, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”
“9.22 Mr Gilmour attended Mr McMullan’s presentation and it was his evidence that whilst there was not a clear steer from the presentation that the claimant should be replaced it was clear to him that the current CMO provision was not meeting the respondent’s needs and that the situation had to be addressed. The presentation made clear that the group business was not happy with the current model of service provision from the CMO. Mr Gilmour’s evidence was that having listened to the presentation he made up his mind that the claimant was not delivering the service the group needed and could no longer be lead CMO. In his witness statement he said that he ‘formed the view that she was not someone who would be able to help the respondent in the journey to becoming a more modern business with up to date and secure communications, training and coaching case managers on site, and increasing the market share within the group as the individual business work was diminishing’. 9.23 Although the report did not go so far as to recommend dispensing with Dr Reynolds’ services, we accepted that this was the understanding Mr Gilmour took from the presentation and it was confirmed by Ms Deeks in her evidence that she had discussions with Mr McMullan and Mr Newcombe following the presentation in which they confirmed that ideally rather than continuing work around the deficiencies of the current provision it would be preferable if a complete change could be effected by the termination of the claimant’s contract. 9.24. Mr Gilmour decided that he would bring the respondent’s relationship with the claimant to an end. He said that in view of her long association with the company and her unique position within it he would give her a ‘soft landing’ by retaining her services on a reduced level gradually reducing her commitment down over the course of three years. …” (2) At para. 9.25 the Tribunal records Mr Gilmour’s evidence as to his reasons for his decision as follows: “The decision was based on the fact that the claimant was not providing the service required by the respondent in the following respects: she did not attend the Bristol office which meant that she had limited input into staff training and development and that face to face discussions had to be conducted at her house in Wales; she did not use e-mail; she required that papers were received by fax or post but not recorded delivery (as she did not wish to have to leave the house to collect mail if she was out when it was delivered); she was not prompt in her turnaround times; did not provide her advice in writing, preferring to dictate it over the phone to the assessors; she was resistant to the engagement of a wider panel of medical experts. These were all factors which led him to conclude that she must be replaced.” (3) At para. 9.29 the Tribunal says: “Mr Gilmour did not consider whether the claimant should be given an opportunity to address the deficiencies in the service she provided and on being asked at the hearing why he did not, his evidence was that he believed that she would not have changed, that she would have filibustered and that in any event there was no need to raise concerns with her about her performance because she was a self employed consultant and that there was no obligation on the respondent to give her an opportunity to improve.”
“The reasons that we considered that the burden of proof had been discharged by the claimant were that the claimant’s work was very highly regarded as was evidenced by most of the witnesses at the tribunal; the fact that Mr Gilmour, who was responsible for the decision to terminate the contract, carried out that decision in a covert and underhand way (which inevitably led us to scrutinise more closely his reasons for taking that decision). There were also references made by Mr Gilmour to the claimant’s age, particularly in the phone call of the4 March 2010 during which Mr Gilmour had made references to the need for succession planning. Finally we were concerned about the fact that the respondent made no attempt to ask the claimant to address the deficiencies in her performance or to adapt to the changes that were required in the service provision and considered that this may have been based on a stereotypical assumption that, as an older person, she would be unable to change or adapt to the new approach that they required.” (I should say that the reference to the burden of proof being “discharged” is not quite right. What the Tribunal meant, as the context makes clear, is that the burden had shifted.) (3) Accordingly the burden of proof shifted to Canada Life to show a non-discriminatory explanation for its decision. In the remaining paragraphs the Tribunal considers the explanation advanced by Canada Life – i.e. essentially, that it was dissatisfied with the Claimant’s performance and did not believe that she was capable of change – and decides that that was indeed the only reason for her dismissal and that it was unrelated to her age. I need not summarise the generality of the Tribunal’s reasoning on this aspect, still less set it out in full, since it is not challenged on this appeal (subject to the issue considered under head (A) below). But I should set out how it dealt with the final point identified in para. 19 – that is, the possibility that Canada Life made a stereotypical assumption that, as an older person, the Claimant would be unable to change. At paras. 29-30 it said: “29. We were concerned about the fact that the respondent had not sought to engage with the claimant by informing her of the changes that they wished to make to the service and allowing her an opportunity to adapt to meet those requirements. The claimant contended that this indicated a stereotypical assumption that an older person would not be able to respond to new ideas, be modern or to change. Mr Gilmour was of the view that the claimant would not change in the manner required. It was his evidence that the claimant would not be able to attend the Bristol office because she was sole carer for her sister who was disabled. It was clear that the claimant did not have IT skills and there was no indication that she intended or wished to acquire them. The claimant would not accept recorded delivery mail and lacked flexibility in her methods of communication. It was clear from her evidence to the tribunal that the claimant believed that the manner in which she provided the services was appropriate and adequate and she indicated that she would challenge requests to do things differently if she did not agree with the reasons given for the request. The claimant had not given any indication that she was willing to find a way of addressing the respondent’s expressed preference for more face to face meetings and attendance at the Bristol office, a preference which we were satisfied that the claimant was aware of, it was telling that the claimant had not seen fit to make any visits to the Bristol office in at least five years to meet staff in person with whom she had regular telephone contact. 30. Mr Gilmour had known the claimant for many years and had worked with her. He knew of her personal circumstances and her devotion to the personal care of her disabled sister. We were satisfied that he genuinely believed from his knowledge of the claimant that she was unlikely to change to adapt to the new requirements of the respondent. Whilst a reluctance to embrace change may be a characteristic that is attributed to older people, and an assumption in any particular case that that characteristic must be present because of the individual’s age would be discriminatory, we concluded that there was no such assumption in this case. Mr Gilmour’s view of her capacity to change was based on his knowledge of the claimant and was, we concluded, a genuine view held by him.” (4) The Tribunal’s conclusion, at para. 32, reads: “For these reasons we concluded that the reason that the respondent terminated the 2006 agreement was not in any sense related to the claimant’s age. It was because of the respondent’s genuine belief that the claimant was not providing the CMO service in the manner it required. It was not under an obligation to give the claimant an opportunity to change as she was a self-employed consultant and in any event it held a genuine view that the claimant would not meet the new requirements, a belief which itself was based on its own knowledge of the claimant and was not anything to do with her age.”
“In view of our finding that there was nothing inherently discriminatory in the decision taken to terminate the claimant’s contract, it was therefore necessary to consider Mr Gilmour’s mental processes to assess whether the termination of the contract was on the grounds of the claimant’s age or not.”
“(1) The Employment Tribunal misdirected itself that it was necessary to consider only Mr Gilmour’s mental processes. It is contended that the Tribunal erred by focussing solely on Mr Gilmour and disregarding the involvement of other individuals in the process leading to the termination of the Claimant’s contract. (2) Having decided that the burden of proof had shifted, the Tribunal erred by failing to take into consideration (a) the fact that Mr McMullan had not given oral evidence; and (b) the fact that Mr Newcombe had not been called to give evidence. (3) The Tribunal erred in failing adequately to address whether the Respondent’s alleged belief that the Claimant was incapable of changing the way in which she worked was itself an age-related belief.”
“39. The second submission that Mr Pitt-Payne makes is that, even if the sole decision-maker was Mr Gilmour, his decision was shaped and informed by others within the Respondent organisation. As a matter of fact, Mr Tatton-Brown accepts that but disputes its significance as a matter of law. He submits that, in such circumstances, the Employment Tribunal is entitled (indeed required) to focus on the mental processes of the decision-maker and no one else. It is this dispute of law which lies at the heart of the present appeal. 40. It is not difficult to think of many situations in the employment context in which this issue may arise. For example, the actual decision to terminate an employee’s contract may be taken by a senior manager, indeed it may be that, within the structure of the relevant employer, only that manager has the power of dismissal. However, that person may have no personal knowledge of the employee and may have to rely entirely on reports which have been prepared by others, for example about an employee’s performance or conduct. Mr Pitt-Payne submits that, if the mental processes of those who prepared such reports are based on discriminatory grounds, then in principle the Tribunal must examine those mental processes and cannot confine itself to those of the eventual decision-maker alone. Otherwise a real injustice might be done, where for example the authors of the underlying reports are acting for reasons which are discriminatory and their reports have a significant influence on the decision to dismiss. 41. It would appear that the precise point of law that arises has not been the subject of direct authority in the past. However, it seems to me that some assistance as to the correct approach in principle can be found in dicta in earlier cases.”
“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”
“In my view, Mr Pitt-Payne’s submissions are consistent with that passage and derive some support from it. If a prohibited ground (whether race, sex, age or another prohibited ground) had a significant influence on the outcome, it may be said that discrimination has been made out, even if the person who makes the actual decision has not acted for that reason if one examines only the mental processes of that person.” “In my view, Mr Pitt-Payne’s submissions are consistent with that passage and derive some support from it. If a prohibited ground (whether race, sex, age or another prohibited ground) had a significant influence on the outcome, it may be said that discrimination has been made out, even if the person who makes the actual decision has not acted for that reason if one examines only the mental processes of that person.”
“As [Mr Pitt-Payne] submits, the present complaint was not brought against Mr Gilmour or any other individual: it was brought against the Respondent organisation. The Employment Tribunal concluded on the evidence before it that the Claimant had done enough to shift the burden of proof to the Respondent. It was then for the Respondent as an organisation to prove that the decision to terminate the Claimant’s contract was ‘in no sense whatsoever’ on the ground of age. For the Tribunal properly to be able to assess whether the Respondent had discharged that burden of proof, it had to consider the mental processes of others whose views had a significant influence (to use Lord Nicholls’ phrase) on the eventual decision to terminate. In the present case the Employment Tribunal found as a matter of fact that the views of others did play that part, in particular the presentation by Mr McMullan and Mr Newcombe on2 February 2010 . Yet it failed to examine the mental processes of those persons to see if they were based on the prohibited ground of age.”
“In my judgment, the Claimant is not trying to raise a new point of law which should have been raised below but seeks to criticise the way in which the Tribunal went about its task: in particular, Mr Pitt-Payne submits that, once the Tribunal had found that the burden of proof had shifted to the Respondent, it was required to analyse correctly the way in which the Respondent could discharge that burden. He submits that, in seeking to carry out that analysis, the Tribunal misdirected itself in law and that error of law should be corrected by this appeal tribunal. I agree.”
“In my judgment this third ground amounts to no more than a disagreement with the Employment Tribunal’s findings of fact as to the mental processes of Mr Gilmour. The passages I have already quoted from the Tribunal’s judgment, in particular at paras 27 and 29-30 [those references being to paras. 19 and 26-27 of the ET's Reasons] make it clear that the Tribunal was alive to the question of possible stereotyped assumptions lying at the root of Mr Gilmour’s mental processes but rejected that suggestion on the facts of this particular case.”
“Both parties have reminded me of the decision of this appeal tribunal in Sinclair Roche & Temperley v Heard[2004] IRLR 763 . I have taken careful account of the various factors that, in accordance with that judgment, are relevant in deciding whether a case should be remitted to the same tribunal or a differently constituted one and have also taken careful account of the parties’ submissions. After weighing up those various factors, I am persuaded by Mr Pitt-Payne that the case should be remitted to a differently constituted tribunal. This is particularly so for the following reasons. First, in my view, the Tribunal fell into fundamental error, as it failed to ask itself the right legal question in this case. Secondly, there is a risk that the Tribunal (however subconsciously) would be tempted to reach the same decision as before. As Mr Pitt-Payne submits, there is a real risk of apparent bias (although he makes no suggestion of actual bias). Thirdly, the lapse of time since the last hearing means that the same Tribunal would not have a particular advantage over a differently constituted one by having a clear recollection of the evidence.”
“When these provisions are put together, the effect is that on a complaint against an employer under section 4(1)(a) it matters not that different employees were involved at different stages, one employee acting in a racially discriminatory or victimising fashion and the other not. The acts of both are treated as done by the respondent employer. So if the employee who operated the employer's interviewing arrangements did so in a discriminatory manner, either racially or by way of victimisation, section 4(1)(a) is satisfied even though the employee who set up the arrangements acted in a wholly non-discriminatory fashion. The effect of treating the acts of the discriminatory employee as the acts of the employer is that the employer unlawfully discriminated in the arrangements he made for the purpose of determining who should be offered employment by him. Hence in the Brennan case[Brennan v J.H. Dewhurst Ltd.[1984] ICR 52 ] the employer unlawfully discriminated against women by reason of the discriminatory way the branch manager Mr. French conducted interviews as part of the arrangements made without any discriminatory intent by the district manager Mr. Billing.”
“There was some discussion before us of whether that approach was applicable in all cases or whether there might not be circumstances where the actual decision-maker acts for an admissible reason but the decision is unfair because (to use Cairns LJ's language) the facts known to him or beliefs held by him have been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation – for short, an Iago situation. [Counsel for the employer] accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct.”
Showing the 50 most senior of 326.