Discriminatory dismissals: does the decision maker matter?

The recent case of Alcedo Orange Limited v Mrs G Ferridge-Gunn confirms that, in discrimination cases, it is only the motivation of the decision maker that is relevant. 

Facts

Ms Ferridge-Gunn was early into her probationary period when she disclosed to her manager (Ms Caunt) that she was pregnant.

A few days later, Ms Ferridge-Gunn took two days’ leave because of morning sickness. During that time, Ms Caunt found that Ms Ferridge-Gunn had failed to process certain documents and she told the Managing Director (Mr Boardman) that Ms Ferridge-Gunn had misled him about her performance at an earlier performance meeting. This was unfounded, as her failure to process the documents was due to her leave. Ms Caunt advised Mr Boardman that continuing to employ Ms Ferridge-Gunn was ‘unsustainable.’

Shortly after she returned, Ms Caunt was unsympathetic and made comments to Ms Ferridge-Gunn relating to her pregnancy/morning sickness such as “is it contagious?”. The following day, Mr Boardman held a meeting with Ms Ferridge-Gunn and told her she was dismissed. This was eight days after disclosing her pregnancy.

Ms Ferridge-Gunn submitted two claims to the employment tribunal, alleging that her dismissal was both automatically unfair and discriminatory (because of her pregnancy / pregnancy related illness). 

Alcedo Orange Limited said the dismissal was not connected to her pregnancy. They said it was due to performance issues that were documented before disclosure of the pregnancy.

ET Decision

An employment tribunal found that Ms Ferridge-Gunn was dismissed because of her pregnancy / pregnancy related illness and so the dismissal was discriminatory:  Ms Caunt was influenced by Ms Ferridge-Gunn’s pregnancy when she suggested to Mr Boardman that she’d misled him, and this was a significant factor in Mr Boardman’s decision to dismiss.

However, it found that the dismissal was not automatically unfair because the sole or principal reason for the dismissal was Ms Ferridge-Gunn’s poor performance (even though this relied in part on Ms Caunt’s views, which were discriminatory).

EAT Decision

Alcedo Orange Limited appealed the decision that the dismissal was discriminatory. They said the employment tribunal failed to separate the role of Mr Boardman, as the decision maker, from Ms Caunt, who provided the information about underperformance before the dismissal hearing. 

The EAT found that the employment tribunal, in reaching its decision, had not considered the decision in Reynolds v CLFIS (UK) Ltd. In Reynolds, it was established that liability for discrimination can only attach to an employer where an employee has carried out a discriminatory act. However, the employee who performs the discriminatory act must be motivated by a protected characteristic. So here, Mr Boardman, who gave the decision to dismiss, must have been motivated by Ms Ferridge-Gunn’s pregnancy in making that decision; conversely the alleged conduct of Ms Caunt in influencing that decision was not of relevance to whether Mr Boardman was acting in a discriminatory manner. 

The case was therefore remitted to the employment tribunal to consider whether Mr Boardman was the sole decision-maker, whether his decision was influenced by Ms Caunt, or whether the decision was made jointly. It would only be if the decision was a joint decision that Ms Caunt’s motivation would be relevant.

Commentary

The EAT’s decision clarifies the different approaches in discrimination claims and certain automatic unfair dismissal claims, for example with dismissal for making protected disclosures (a whistleblowing claim). 

As per the Supreme Court’s decision in Royal Mail Group Ltd v Jhuti (whereby dismissal allegedly arose for whistleblowing), if the decision-maker received ‘corrupted’ information this can (in some cases, where the ‘corruption’ has been motivated by the employee’s status as a whistle-blower) render the dismissal automatically unfair, even if the decision-maker was innocently relying on that information when making the decision to dismiss. 

Whereas, in discrimination claims, where the decision-maker’s motivations are not discriminatory, but they act on ‘tainted information’, the discrimination is the supplying of the ‘tainted information’ and not the dismissal itself.  For this reason, it is going to be open Ms Ferridge-Gunn to apply to the Employment Tribunal to amend her claim to bring a separate complaint in respect of the actions of Ms Caunt in telling Mr Boardman that he had been misled by Ms Ferridge-Gunn, and contend that those actions had a significant influence on her eventual dismissal, so that it might be asserted that the losses resulting from dismissal flowed from that detrimental treatment by Ms Caunt. 

This is a useful reminder for employers that when decisions are made regarding dismissals, the processes followed should be thorough and transparent, with clarity as to whom the decision maker is, and a clear rationale of what the decision-maker considered and why they reached their decision.

This case also serves as a useful reminder that documenting matters such as underperformance are pivotal. In this case, had the employer not documented the performance concerns that occurred before disclosure of the pregnancy, then the EAT outcome could well have tipped the scales in the favour of Ms Ferridge-Gunn.

Contributors: Stephen Ellerby and Robin Ford

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2023. Specific advice should be sought for specific cases. For more information see our terms & conditions.

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast – the latest episode, on Thinking Differently: neurodiversity in work is available here.