UK: EAT confirms dismissal will be discriminatory only if decision-maker motivated by protected characteristic

A dismissal will only be directly discriminatory if the person making the decision is motivated by the employee's protected characteristic.  It is not enough that someone else was influenced by the protected characteristic to secretly manipulate the decision-maker to dismiss in good faith, for example by misleading them as to the facts. The EAT confirmed that this remains the law as set out in an earlier Court of Appeal decision, Reynolds v CLFIS (UK) Ltd, notwithstanding the Supreme Court's different approach in whistleblowing cases.

In Alcedo Orange Ltd v Mrs G Ferridge-Gunn the claimant's line manager had been motivated by the claimant's pregnancy to make unfounded criticisms of the claimant's performance to the managing director.  The EAT held that the tribunal had failed to consider whether the dismissal decision had been made jointly by the line manager and managing director, or only by the latter (and, if the latter, was he motivated by the pregnancy), and therefore remitted the case to be reconsidered.

However, as the EAT pointed out in this case, a detriment claim could still be brought against the manipulator for the losses flowing from dismissal, and so the employer could end up vicariously liable via a different route.  Where such a claim has not been expressly made by a litigant in person, but it is clear that they are asserting that a line manager had a significant influence on the decision-maker, the litigant in person may well be permitted to make a late amendment to the claim.  Therefore it may be in the respondent's interests to ensure the claims are properly identified at an early stage in the proceedings.  It will also remain important for decision-makers to carefully consider whether a protected characteristic may have influenced any line managers involved in providing the evidence to support the decision.

The ruling contrasts with the position for whistleblowing unfair dismissal claims.  If a person in the hierarchy of responsibility above an employee is secretly motivated by the employee's whistleblowing to invent a reason for their dismissal (such as poor performance) and the decision-maker adopts this invented reason in good faith, unaware of the hidden reason, then the reason for the dismissal is treated as the protected disclosure and the employer may be liable for automatically unfair dismissal for whistleblowing (as established by the Supreme Court in Royal Mail v Jhuti).