Manager A tells manager B that employee C isn’t up to the job.  Believing this to be true, B sacks C. Is B guilty of discrimination if A’s report to him is tainted by improper considerations of C’s age?

This sounds like an examination question but was actually a real issue facing the Court of Appeal last week in CLFIS (UK) Limited v. Reynolds.  The facts matter little beyond the summary above (save that C was an independent contractor, not an employee) but were complicated by two additional points:

1. When B told C (aged 72) that her contract would not be renewed he tried to soften the blow of a termination for poor performance, describing it instead as being part of CLFIS’s “succession planning process”. This gallant attempt to do the right thing had the twin disadvantages that (a) it was wholly untrue and so cast a long shadow over much of the rest of B’s evidence; and (b) with unerring precision it turned a legitimate reason for the non-renewal into a discriminatory one.

2. Part of B’s pleaded reason for choosing to discontinue C’s contract despite her long association with CLFIS was his view that she was very unlikely to be able or willing to make the changes to her working practices which would be necessary to address the performance concerns highlighted by A. So not only did he tell her that it was about succession planning, but also there was a strong whiff of the traditional problems with old dogs facing new tricks in his thought processes even on the (otherwise legitimate) performance front.

C sued CLFIS and understandably concentrated all her fire on the hapless B, seemingly doomed victim of his own good intentions. Significantly, she did not make any allegations that CLFIS was liable for A’s actions.

As the evidence unfolded, it became apparent that B had genuinely and reasonably believed on the back of A’s report that C’s performance warranted not renewing her contract. It was found that he had no reason to consider that A’s input was prejudiced on age grounds.  His explanation to C was therefore misguided and “did him no credit”, said the Tribunal, but did not make discriminatory a reason which was not.  His view that C would not make the necessary changes to her working behaviours was found to be based on his own experience of her and on the abject failure of prior attempts to bring about those shifts.  Therefore although the “old dogs, new tricks” assumption would indeed be discriminatory, B had not actually made it.

As the relieved B staggered out of the Employment Tribunal, ashen-faced but a free man, where did that leave C?  Even if B’s part in it had been totally unwitting, the fact remained that A’s allegedly discriminatory report had led to her losing her position.  Could she succeed against CLFIS on that basis?

The Employment Tribunal, upheld in full by the Court of Appeal, said not.  C’s case had not included allegations against A, and they could not be added later.  If C had pursued the propriety of A’s report in the first place, the position might have been different, though the Court of Appeal admitted in the same breath that she could not be blamed for not doing so initially because B’s conduct had drawn all the flak to him.  However, as the case had developed, B’s reliance on A’s report had become clear, and there had technically been an opportunity to re-frame her case at that time.

A very unfortunate outcome for C, therefore, and a clear pointer to employees to keep prospective sources of discriminatory input into dismissal decisions firmly in mind as the case progresses, and to take steps to amend their claim if need be.