Influencing discriminatory decisions
What happens when a person influences a decision-maker in capability or disciplinary proceedings to take discriminatory action? Will that person be liable? It seems, following the recent Employment Appeal Tribunal (EAT) decision in Commissioner of Police of the Metropolis v Denby, that they will.
The decision in CLFIS
The principles laid down by the Court of Appeal in CLFIS (UK) Ltd v Reynolds were key to the EAT's decision in Denby, and the EAT gave guidance on how they should apply. The Court held that, where a person is the ultimate decision-maker in an act of alleged discrimination, but has been influenced by others, a tribunal should only enquire into that person's mental processes.
Where that person (the innocent agent) acts on "tainted information", in other words "information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory" then the discrimination is the supplying of the tainted information and not the acting upon it by its innocent recipient.
Where the allegedly discriminatory decision is made jointly, the conscious and subconscious motivation of all those responsible must be considered, as a discriminatory motivation on the part of any of the decision-makers is sufficient to give rise to liability.
The facts in Denby
The claimant was a male police officer, Chief Inspector Denby. He headed up one of the five arms of the Territorial Support Group, TSG1. His female comparator, Chief Inspector Edwards, was in charge of TSG3. The under-representation of women within the TSG was a sensitive issue and the Deputy Assistant Commissioner responded in a heavy-handed manner (by involving the Department for Professional Standards (DPS)) to complaints about members of TSG1 claiming for overtime not worked.
However, when similar complaints were raised about TSG3 (led by CI Edwards) she allowed them to be investigated locally without formal DPS investigation.
Matters escalated and CI Denby was subjected to a criminal investigation. He brought a claim for discrimination on the ground of his sex against the Commissioner of Police of the Metropolis. The tribunal found that the Deputy Assistant Commissioner had influenced the decision taken by another officer to subject CI Denby to a criminal investigation. The EAT agreed, holding that the other officer was not "innocent" in the sense defined in CLFIS because he was fully aware of the discriminatory context.
"Deliberately opaque decision-making"
The point was made in Denby that the principle in CLFIS should not be allowed to become a means of escaping liability by an employer "operating a system of deliberately opaque decision-making, intended to mask the involvement of senior employees in decisions". The EAT agreed that the CLFIS principle needs careful handling, but stated that tribunals can avoid unfairness by permitting appropriate amendments, and allowing employees to target alternative decision makers where appropriate.
This avoidance of unfairness was demonstrated in Denby where an amendment was allowed towards the end of the hearing which enabled CI Denby to add another potential discriminator, in the alternative to the one originally pleaded, after the identity of the decisionmaker had been thrown into doubt by witness evidence.
Following Denby employers should ensure that decision-making processes are as clear and transparent as possible. A person influencing a decision-maker in a discriminatory way can be a joint decision maker so it will not be possible for an employer to escape liability by dressing up a decision as being that of the "innocent" agent when information supplied, or views expressed which help the decision-maker reach their decision are themselves discriminatory.