In Alcedo Orange Ltd v Mrs G Ferridge-Gunn, the Employment Appeal Tribunal (EAT) upheld an appeal because the Tribunal had not considered who the decision maker was in a case of pregnancy and maternity discrimination.
Facts
Mrs G Ferridge-Gunn commenced employment with Alcedo Orange Ltd and soon after was notified by her manager and the managing director (MD) that there were concerns with her performance. Consequently, she was put on a performance improvement plan. Whilst on the plan, she notified her manager she was pregnant and this information was also passed to the MD. The Claimant took sick leave because of morning sickness and during this absence it was found that the Claimant had failed to complete work she had promised to do (and could have done had she not been absent). Upon discovering this her line manager reported to the MD that the Claimant had misled them about her progress and on her return from leave, the Claimant was dismissed for her alleged underperformance.
Tribunal
The Claimant challenged her dismissal and the Tribunal upheld her discrimination claim on the basis that despite the line manager not being the decision maker, the decision by the MD had been taken based on information given by the line manager, which itself was motivated by the Claimant’s pregnancy.
Alcedo Orange Ltd appealed to the EAT, on the basis that the Tribunal had not separated the role of the decision maker and the line manager. The appeal was upheld, confirming that a perpetrator of a discriminatory act must have been motivated by the protected characteristic in question and an act cannot be discriminatory on the basis of someone else’s motivation. The EAT held that the Tribunal did not identify whether the decision to dismiss the Claimant was enacted by a sole decision-maker (the MD), by a sole decision-maker influenced by other people (the MD influenced by the line manager’s comments), or by a joint decision (the line manager and MD). Consequently the case was remitted to the employment tribunal to be reconsidered.
Comment
Case law has previously illustrated that acts are only discriminatory if the less favourable treatment was motivated because of a protected characteristic. An act cannot be classified as discrimination if it is based upon someone else’s motivation. This is in contrast to the case law relating to whistleblowing where a decision maker can be found liable even where they don’t have motive/are innocently relying upon information given (where that information is false and motivated by the making of a protected disclosure).
The case is a reminder that employers should have good processes in place, ensuring that in each situation a clear decision maker is identified and the reasons for any decisions taken clearly documented. In situations of capability, it is important to document and evidence any poor performance to ensure the reason for any treatment or dismissal can be evidenced, and to counter any argument that a discriminatory reason is the real one and or any adverse inferences being drawn.
For further information please contact a member of the Employment Team.
