Tribunal failed to identify a sole or joint decision-maker in a pregnancy discrimination dismissal claim
The Employment Appeal Tribunal (EAT) has held in Alcedo Orange Ltd v Ferridge-Gunn that a tribunal was wrong to find that a pregnant employee's dismissal was discriminatory when it had not made clear findings as to whether the dismissal decision was made by a sole decision-maker, a sole-decision maker influenced by others or by way of a joint decision.
Shortly after the claimant started employment, performance concerns were raised by her line manager, C, and the managing director, B. Soon after this, the claimant notified C of her pregnancy. At a follow-up meeting some performance improvement was noted, although residual concerns remained. The claimant then took two days' sick leave for morning sickness, during which time C discovered that she had failed to process some documents. C told B that the claimant had misled B about her performance; however, this claim was unfounded given that the failure to process the documents coincided with the claimant's absence. When the claimant returned from sick leave, C was unsympathetic and asked her whether morning sickness was 'contagious' and how much time off she would need. The following day the claimant's employment was terminated on grounds of poor performance.
The tribunal upheld the claimant's claim of pregnancy discrimination, finding that C was influenced by the claimant's pregnancy when suggesting to B that she had misled him, and that this was a significant factor in the decision to dismiss. However, the tribunal was not referred to the case of Reynolds v CLFIS (UK) Ltd where it was held that the employee who did the discriminatory act must actually have been motivated by the protected characteristic, and that an act cannot be discriminatory on the basis of someone else's motivation.
The EAT held that it was clear that the claimant, who was a litigant in person, was claiming that C had a significant influence on the eventual decision to dismiss. The case therefore required an analysis of whether the decision was made by a sole decision-maker, a sole-decision maker influenced by others or a joint decision. The case was remitted to the tribunal to consider this point afresh.
Take note: Alcedo Orange provides a useful reminder of the Court of Appeal's decision in Reynolds v CLFIS (UK) in which it was held that, as far as discrimination claims are concerned, it will not be possible for a decision-maker's act to be discriminatory on the basis of someone else's motivation; the decision-maker must have been motivated by the discriminatory reason. However, it's also worth bearing in mind that a person influencing a decision-maker in a discriminatory way can be found to be a joint decision maker, meaning that it will not be possible for an employer to escape liability by dressing up a decision as being that of an "innocent" agent. It follows that decision-making processes should be handled as clearly and transparently as possible, with a supporting evidence regarding the decision-maker's reasons documented and retained in case of any later issues.