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04 December 2017

75: Employees who influence a decision-maker to act in a discriminatory way in disciplinary proceedings can be liable

In Commissioner of Police of the Metropolis (MPS) v Denby, the Employment Appeal Tribunal (EAT) has ruled that a manager who influenced the decision-maker to act in a discriminatory way in disciplinary proceedings could be liable. The EAT followed the Court of Appeal’s decision in Reynolds v CLFIS (UK) Ltd which confirmed that a Tribunal should assess only the mental processes of the ultimate decision-maker, even where they have acted on information supplied by another employee whose motivation is discriminatory; however, where the decision is made jointly, a discriminatory motivation on the part of any of the decision-makers will give rise to liability.

Chief Inspector Denby was a male police officer who headed up of one of five Territorial Support Groups, TSG1. His female comparator, Chief Inspector Edwards, was head of TSG3. The lack of gender diversity within the Territorial Support Groups was a sensitive issue at high level.

Following allegations of false overtime claims in TSG1, the Department for Professional Standards (DPS) was asked to undertake a formal investigation. However, a similar complaint about irregular overtime claims in TSG3 was investigated locally with no DPS investigation. Following the investigation, matters escalated and CI Denby was served with a disciplinary notice, placed on restrictive duties and subjected to a criminal investigation. His performance rating was also reduced which meant he was ineligible for promotion. CI Denby brought claims of sex discrimination and victimisation in the Employment Tribunal.

The Employment Tribunal held that CI Denby had suffered direct sex discrimination and victimisation on a number of grounds, including that the managers responsible for taking the decision to place him under criminal and disciplinary investigation, and to restrict his duties, had been influenced by other managers with discriminatory motivation. The chain of command involved in each of the various alleged discriminatory actions in this case was somewhat difficult to determine, and the Tribunal described the MPS witnesses as evasive and disingenuous. Since the identity of the real decision-maker was only revealed by the witness evidence, the Tribunal allowed CI Denby to amend his case to add another potential discriminator.

On appeal, the employer argued that the Tribunal had misinterpreted the Reynolds v CLFIS case. This was rejected by the EAT, which agreed that the various decision-makers involved in each alleged act of victimisation had in some instances been influenced by the discriminatory views of other managers and had been fully aware of the discriminatory context. The EAT held that the Tribunal had therefore been correct to apply the CLFIS principle by holding that they were joint decision-makers acting with discriminatory motivation. The EAT also endorsed the Tribunal’s decision to allow a late amendment to CI Denby’s claim.

The EAT warned that the CLFIS decision should not be used by employers as a means of escaping liability by operating a system of deliberately opaque decision-making so as to mask the identity of the true discriminator. This case illustrates that a person who influences a decision in a discriminatory way can be a joint decision-maker. It is therefore important to be able to demonstrate that decisions have been taken fairly and independently, without undue influence by anyone who may be seeking to manipulate the process for unlawful reasons.

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