The Claimant was a police officer who was placed under investigation by the Department for Professional Standards (DPS) for criminal and/or gross misconduct. Conversely, a female officer who performed the same role and was placed under investigation for similar misconduct had complaints against her dealt with locally. The Claimant successfully argued sex discrimination at the Employment Tribunal.

The Employment Appeal Tribunal dismissed the appeal and held that the Employment Tribunal had properly applied the burden of proof provisions, properly evaluated the evidence and there was no procedural unfairness. Of the four points of appeal, one that the EAT had to consider was interpretation of the principle enunciated in the case of CLFIS (UK) Ltd v Reynolds [2015] ICR 1010. This relates to joint decision making by more than one person acting with discriminatory motivation, and whether only a participant in the decision acting with discriminatory motivation is liable. If a decision was found to have been made jointly then a tribunal would have to consider the motivation of all involved because if any of them were motivated by discrimination then the decision would be ‘tainted’.
The Employment Appeal Tribunal rejected the appellant’s argument on this point and held that the decision to serve the claimant with his disciplinary notice was a joint one and that all three decision makers acted with discriminatory motivation.

Practical Lessons

A very persuasive argument was advanced by the respondent in this appeal relating to hierarchy of decision making. They argued that the CLFIS principle is open to abuse where an employer operates a system of deliberately opaque decision making, intended to mask the involvement of senior employees in decisions. They further argued that a tribunal should not allow an employer to hide behind its more junior officers taking responsibility for decisions dictated to them by invisible senior officers.

The Employment Appeal Tribunal tentatively agreed that the principle had to be ‘handled with care’ but went short of endorsing this argument. But the decision must surely prompt employers to take care when responding to how, and on what information, decisions were taken. It seems clear that liability can only attach to an employer where an individual employee/agent for whose act the employer was responsible, had done an act which satisfied the definition of discrimination. That means that the individual employee who carried out the act complained of must himself have been motivated by the protected characteristic.
https://assets.publishing.service.gov.uk/media/59ef268e40f0b61ab035cb8a/The_Commissioner_of_Police_of_the_Metropolis_v_Mr_A_Denby_UKEAT_0314_16_RN.pdf