What happens when someone influences a decision maker in a discriminatory way?

In the recent case of the Metropolitan Police Force v Denby, the Employment Appeal Tribunal had to consider whether someone who influenced a decision maker in a discriminatory way could be regarded as a joint decision maker.

The Law

The Equality Act 2010 provides that it is direct discrimination to treat an individual less favourably because of his or her sex. Anything done by a person in the course of his or her employment shall be treated as if done by his or her employer (as well as the individual). However, if a decision maker unknowingly makes a decision based on discriminatory information, that person is an “innocent agent” and is not liable under discrimination law . Only someone participating in the decision making with discriminatory motivation is liable (CLFIS (UK) Ltd v Reynolds [2015]ICR 1010 CA (“CFLIS”))

The Facts

Chief Inspector Adrian Denby was in charge of one of five arms of the Territorial Support Group – TSG1. Concerns had been raised about the under-representation of women in the TSG1 and the image it portrayed (male officers would walk across the office from the showers wearing only a towel). Also, two members of TSG1 complained about others falsely claiming overtime. This led to a visit to TSG1 by the Department for Professional Standards who put four officers on restricted duties.

CI Denby was then visited by Deputy Assistant Commissioner Maxine de Brunner who indicated to him that he was not the right person to head up the unit. She informed Commissioner David Musker of her concerns and in October 2014, CI Denby was removed from his command of TSG1 and put on restricted duties while the matter was investigated by the DPS.
Around the same time, a complaint had been made against a female Chief Inspector, CI Edwards, who headed up another arm of the TSG, regarding claiming overtime not worked. However, the Department for Professional Standards was not called in and it was treated as a local issue and CI Edwards was not put on restricted duties.
In March and April 2015, there were discussions about whether CI Denby could return to operational command. Initially, Commander Musker was prepared to grant this but CI Denby was then told by another officer that his return had been blocked.

CI Denby later lost out on the opportunity for promotion because his performance scores were downgraded by Commander Musker. Commander Musker did not interfere with the scorings of CI Edwards.
After the DPS investigation ended, CI Denby was found to have acted outside permitted overtime procedures but with good intentions and he was told this would be dealt with informally by management action. CI Denby appealed against this decision but his appeal was not allowed.

CI Denby brought claims of sex discrimination and victimisation against the Metropolitan Police Force and relied on the disparity of treatment between himself and CI Edwards as direct sex discrimination. CI Denby alleged that the decisions made were either taken and/or heavily influenced by those with discriminatory motives.

The Tribunal found the Metropolitan Police Force liable to CI Denby for sex discrimination and victimisation, preferring his evidence to that of the senior officers who had been called as witnesses in the case. The Tribunal found that DAC Maxine de Brunner had strongly influenced Commander Musker’s decision to investigate CI Denby and that he was not an “innocent agent”. The MPS appealed and one of the grounds of appeal was that the Tribunal had misapplied the law as laid out in the CFLIS case (see above) and had wrongly held MPS liable in relation to innocent decision makers, who had merely implemented decisions without discriminatory motive.

The Decision

The Employment Appeal Tribunal dismissed the Metropolitan Police Force’s appeal. It found that the CFLIS decision could not be relied upon to escape liability through operating a system of deliberately “opaque” decision making which masks the identity of the true discriminator. The EAT also confirmed that where a claimant is unable for good reason to identify which individual is responsible internally for an act of discrimination, the claimant may (as in this case) be allowed to amend his claim during the hearing in order to add additional or alternative discriminators once the correct persons are identified from witness evidence.

It is still the reasoning of the decision maker that remains central as laid out in the CFLIS decision.  However, this case demonstrates that employers cannot use the CFLIS decision to avoid liability where the decision making is deliberately non transparent and where, as a result, the claimant has not identified the correct person as being the discriminator.

Points to Note

It is still the reasoning of the decision maker that remains central as laid out in the CFLIS decision.  However, this case demonstrates that employers cannot use the CFLIS decision to avoid liability where the decision making is deliberately non-transparent and where, as a result, the claimant has not identified the correct person as being the discriminator.

Action to Take

1. More often than not, decisions to take disciplinary action are taken by managers who have no knowledge of the employee concerned, to show that the employer is being impartial. What this means is that the manager will often be relying on information supplied by others.  In these circumstances, it is sensible to be alert to the possibility of discriminatory motives and to question the individual providing the information if there is any problem.   Ideally, get someone independent to check all the facts supporting the decision-making process.
2. During any disciplinary proceedings, make sure you put in writing the reasons behind why you are taking such action and that you are clear as to how and on what information a decision has been reached.

This article was written and researched by Miranda Amos, Solicitor at our Salisbury office

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