Terminating Employment – Who Really Makes the Decision?

In the firing line!

A recent decision in the Employment Appeal Tribunal has confirmed the importance for employers of being clear about who the decision maker is and what influences their final decision during the dismissal process.  

It goes without saying that discriminatory motives based on the protected characteristics of the Equality Act should not drive the decision-making process in any dismissal. However, if someone with discriminatory motives heavily influences the decision or process that may give rise to a potential claim for discrimination.

The Employment Tribunal’s approach to reviewing a dismissal process is to consider different acts separately. On that basis an individual who provides information and/or opinions which may influence the decision maker’s choice, has not been considered as the decision maker (whether joint or otherwise). Therefore if the person dismissing someone has done so on the basis of information from a third party who has a discriminatory motive, the dismissal itself would not be found to be the discriminatory act, but rather it is the act supplying of the information that would be discriminatory.

However, if the decision is viewed as a joint decision, the motives of both (or all) parties must be assessed. A discriminatory motive of a joint decision maker would taint the overall decision and, potentially, mean that that the dismissal itself was discriminatory.

Case Study: Alcedo Orange Limited v Ferridge-Gunn

In this recent case the Tribunal failed to identify the decision maker responsible for the dismissal of a pregnant employee. On appeal, the Employment Appeal Tribunal said the Tribunal had been wrong to hold the dismissal as discriminatory before making clear findings on who the decision maker was. It considered that it was first essential to determine whether the managing director, was:

  • the sole decision maker;
  • the sole decision-maker whose decision had been influenced by the line manager; or
  • whether he and the line manager were joint decision-makers.

The Claimant in this case was dismissed during her probationary period, some 8 days after announcing that she was pregnant. Prior to announcing her pregnancy, the Respondent had raised concerns with her performance and set targets for improvement in a meeting to discuss key performance indicators (KPIs). After the Claimant had announced her pregnancy, there was second KPI meeting, in which it was acknowledged by the Respondent that her performance had improved.

The Claimant then subsequently went off on a period of sickness absence due to morning sickness. During her absence, the Claimant’s line manager discovered that the Claimant had not completed certain elements of her work, which the Claimant had confirmed were complete during the second KPI meeting. When she returned from her absence, the Claimant’s line manager made several comments as to the nature of her sickness, including whether “it was a virus”, it was contagious”, “how much time off are you going to need for this”, “sorry to be unsympathetic but I’ve never been pregnant before” and “stop faffing and go home”. The line manager then told the managing director that the Claimant had misled him in saying the work had been completed at the second KPI meeting.

As a result, once she returned to work, the Claimant had a meeting with her line manager and the managing director and it was confirmed that her employment was being terminated on the basis that her performance was below par. The Claimant subsequently submitted a grievance and ultimately brought a claim for pregnancy discrimination and also a claim that her dismissal was automatically unfair.

In the first instance the Tribunal dismissed the Claimant’s claim for automatic unfair dismissal, on the basis that the reason or principal reason for her dismissal was not connected with her pregnancy. However the Employment Tribunal upheld the Claimant’s claim for pregnancy discrimination. It found that the managing director had relied upon the line manager’s views and opinions in deciding to dismiss the Claimant, and the line manager’s views had been significantly influenced by the Claimant’s pregnancy. As a result the managing director’s decision to dismiss was tainted by the potentially discriminatory views of the line manager.

The Respondent appealed to the Employment Appeal Tribunal arguing that the line manager was not the decision maker, or joint decision maker, and that the managing director had dismissed the claimant on the grounds of her performance and not her pregnancy. The Employment Tribunal agreed that confirmation of who was acting as the decision maker was critical and therefore, the case has now been remitted to the Employment Tribunal to determine who the decision maker was so that the motivation behind the dismissal can be determined.

Learning points:

If a decision maker is not clear about how they reached their decision and how, they might find themselves as one of several ‘joint’ decision makers and the acts and motivations of each person will be open to scrutiny. Employers should therefore decide, from the beginning of the process, who the decision maker is and what information are they relying on. They should also consider whether anyone else in the business (including anyone from HR) is heavily influencing the decision, if so, the employer should be mindful that they might be classed as a ‘joint’ decision maker and the motivations of both people will be scrutinised.

Employers should therefore follow a clear process and document the evidence relied upon in the decision-making process and be clear on the reasons for dismissal. It is also advisable to train staff on the protected characteristics under the Equality Act 2010, so that they are aware of how their decision making must not be motivated by discriminatory motives either from themselves or from others involved in the process.

This decision serves as a valuable reminder for employers to ensure a fair and transparent dismissal process. It will be essential for employers to identify the true decision makers and ensure that the decision maker is aware that influence from others could, if such influence is found to be exerted for discriminatory motives, be found to be discriminatory. 

Discrimination in the workplace is a complex area of law, and therefore, if you require any advice on the processes and procedures your organisation currently has in place, please get in touch with our Employment Team at employment@herrington-carmichael.com who will be happy to assist.

Alex Harper
Senior Solicitor, Employment
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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