Facts

Ms Reynolds worked for CLFIS in the role of Chief Medical Officer and was a specialist in medical insurance. She had worked for CLFIS since 1968 and during that time had received several insurance industry awards as well as an OBE for her work in insurance. Ms Reynolds initially worked as an employee. She was made redundant in 2006 and re-engaged as a self-employed consultant.

In 2010, there were some concerns about aspects of Ms Reynolds’s performance. A presentation about the deficiencies in Ms Reynolds performance was given to senior officers within CLFIS.

It was decided that it would be preferable to terminate Ms Reynolds’s engagement rather than to try work around the deficiencies. The consultancy agreement was therefore terminated with effect from 31 December 2010. At the time of her termination, Ms Reynolds was aged 73.

She brought a claim of direct age discrimination.

ET decision

The ET said that none of the reasons why Ms Reynolds’s engagement was terminated related to her age. The ET held that there was no link between her performance deficiencies and her age, and referred also to the fact that CLFIS engaged the services of other medical officers of a similar age to Ms Reynolds's (including one engaged until he was aged 90).

The ET focused on the “mental processes” of Mr Gilmour, the manager who had made the decision to terminate Ms Reynolds’s engagement. It did not assess the mental processes of others in the organisation whose views would have had a significant influence on the decision.

The ET dismissed her claim (the judgment is available here). Ms Reynolds appealed to the EAT, arguing that the “mental processes” of people other than the decision maker are relevant as they shape the eventual decision maker.

EAT decision

The EAT upheld Ms Reynolds’s appeal.  

The EAT said that the mental processes of those besides the decision maker should be looked at. The EAT referred to a situation where a decision maker in a dismissal acts without discrimination, but has relied upon reports. The EAT said that “injustice might be done” if the authors acted for discriminatory reasons and influenced the decision to dismiss, yet an ET unable to consider this.

Comment

The EAT’s decision is the first authority on this point. But, in practice, how far should the net be cast – decision maker? Report authors? People spoken to by report authors? There is no clear answer. The EAT said that ETs should bring a common sense approach.

The judgment is available here.

Reynolds v CLFIS (UK) Ltd & Ors (Age Discrimination) [2014] UKEAT 0484_13_2105 (21 May 2014)