In Reynolds v CLFIS (UK) Limited, the EAT decided that in discrimination cases, the mental processes of all employees who have significantly influenced the alleged discriminatory decision are relevant, not just the motives of the actual decision-maker.
What does this mean?
Reynolds recognises that organisations may allow only a senior manager to dismiss employees, and if that senior staff member does not know the particular employee personally, he may base his decision on formal or informal reports on the employee's conduct or performance. If the dismissed employee can show that the authors of those reports were acting for discriminatory reasons and the reports had a significant influence on the decision to dismiss, the dismissed employee will be able to show that he was directly discriminated against.
While the decision in Reynolds relates to the dismissal of an employee, the principle will apply to all types of employment decisions that are capable of being discriminatory. For example, it may be applicable to decisions with regard to hiring of new employees, promotions and the selection for redundancy of existing employees.
What should we do?
At a time when a recent survey reports that nearly a third of people in Britain admit to being racially prejudiced, the preparedness of employers to defend discrimination claims is particularly important. In many discrimination cases, causation is the key battleground, i.e. the employer will defend the claim on the basis that the employee's particular protected characteristic had no bearing on the action taken. This decision opens up the number of witnesses who could now become embroiled in proceedings, making it all the more important that employers are able to point to solid, written evidence supporting or explaining the decision taken, for example in the form of performance appraisals, redundancy criteria or candidate selection criteria.