One of the things that makes discrimination such a difficult subject is that it requires the Tribunal to see into the mind of an employer to determine why particular actions were taken. But employers – particularly large employers – do not always act through a single person whose motivations can be examined. A number of people might contribute to a situation, which an employee claims to be discriminatory.
In CLFIS v Reynolds the Court of Appeal held that when an employee was dismissed it was the mind of the individual manager making the decision to dismiss that had to be considered, rather than the motivations of others who may have been involved in the process. But that is not always a simple distinction to draw.
In Metropolitan Police v Denby, Chief Inspector Denby claimed that he was discriminated against on the grounds of his sex when he was subjected to a range of performance management and disciplinary actions, which hampered his prospects for promotion. The tribunal upheld the majority of his claims and the Metropolitan Police appealed.
A central issue in the appeal was that in relation to each act of discrimination found by the tribunal, a number of senior officers had been found to be involved in the decision making process. The Metropolitan Police argued that in each case the decision was actually taken by an officer who was ‘innocent’ of any discriminatory intent even if one or more of his or her colleagues had indeed had a discriminatory motive.
The EAT rejected the appeal - finding that the tribunal had been careful to ensure that the actions of each decision-maker could properly be said to have been discriminatory. In reaching that conclusion the EAT agreed with counsel for CI Denby that the ruling in CLFIS v Reynolds should not be used to allow an employer to escape liability through deliberately opaque decision-making intended to mask the identity of the true discriminator.
