The EAT has confirmed that a decision to dismiss based on “tainted information” given by another individual to the decision-maker would not make the dismissal discriminatory unless the decision-maker themselves were motivated by the protected characteristic in question.
In more detail
Ms Ferridge-Gunn was dismissed during her probationary period after she notified her employer of her pregnancy, allegedly on performance grounds.
Shortly after she had begun employment, and before she had notified her pregnancy, Ms Ferridge-Gunn attended a meeting with the managing director, Mr Boardman, and her line manager, Ms Caunt, to discuss concerns they had about her performance and attitude to work.
Ms Ferridge-Gunn notified Ms Caunt that she was pregnant the following week. Two days later, she attended a second meeting where some improvement was noted, although there remained some performance concerns. She was then absent for two days with morning sickness. During Ms Ferridge-Gunn’s absence, Ms Caunt discovered that she had failed to upload certain documents onto the employer’s systems. She told Mr Boardman that Ms Ferridge-Gunn had misled him in saying that she had made progress at their previous meeting. The employment tribunal later found that this was an unfair accusation, finding that the work would have been done had Ms Ferridge-Gunn not been off sick and, indeed, was completed very soon after she returned to work. The tribunal also found that Ms Caunt had made unsympathetic comments to Ms Ferridge-Gunn when she was suffering from morning sickness such as “is it a virus”, “is it contagious”, “how much time are you going to need for this”, “stop faffing and go home”.
Ms Ferridge-Gunn was then dismissed at a third meeting for “below par” performance and because her employment “was not working out”.
The tribunal upheld Ms Ferridge-Gunn’s claim for pregnancy discrimination, finding that Mr Boardman had relied upon Ms Caunt’s incorrect views (which were significantly influenced by Ms Ferridge-Gunn’s pregnancy and her pregnancy related absence) that he had been misled when deciding to dismiss. However, significantly, it was not clear from the tribunal’s decision whether Mr Boardman had made the decision to dismiss alone.
The EAT upheld the employer’s appeal against the finding of discrimination. The tribunal had not been referred to the Court of Appeal’s decision in Reynolds v CLFIS (UK) Ltd, which makes it clear that the person who carried out the allegedly discriminatory act must have been motivated by the protected characteristic in question (either consciously or sub-consciously). The act does not become discriminatory simply because it was influenced by “tainted information” given by someone else with discriminatory motive. In this case, it was clear that Ms Ferridge-Gunn was asserting that Ms Caunt had a significant influence on the eventual decision to dismiss. The case “cried out” for an analysis of whether the decision to dismiss was made by a sole decision-maker (Mr Boardman), a sole decision-maker influenced by others, or jointly with others (i.e., jointly with Ms Caunt), which the tribunal here had failed to do. The case was therefore remitted to the tribunal to consider in light of Reynolds.
This decision is a helpful reminder that an act will only be discriminatory if the person carrying out the act has discriminatory motive (conscious or sub-conscious). This will be highly fact specific. Nevertheless, a claimant could in the same proceedings bring a separate claim against the person allegedly supplying tainted information, for which the employer might be vicariously liable. Indeed, the EAT in this case gave permission to Ms Ferridge-Gunn to add such a claim against Ms Caunt.
The decision also highlights the difference between discrimination and whistleblowing unfair dismissal claims. In Royal Mail v Jhuti, the Supreme Court held that tainted information provided to a decision-maker could, in certain circumstances, be attributed to the decision-maker when deciding whether the reason for dismissal was automatically unfair due to having made a protected disclosure. However, in Jhuti, the Supreme Court accepted that Reynolds remains good law when considering discrimination claims.
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