Employment Tribunal Case Summary – Identifying the Decision Maker in a Dismissal

In the recent case of Alcedo Orange Ltd v Ferridge-Gunn, the Employment Appeal Tribunal had to decide whether a Tribunal is permitted to look behind a decision-maker’s motivation in a discrimination case and take account of other staff members’ motivation who were indirectly involved.

The Employment Appeal Tribunal held that the Tribunal is not permitted to look behind the decision maker’s motivation.

Background

The Claimant was working during a 12-week probation period and performance had been raised with her.  The Claimant informed her manager that she was pregnant. Near the end of the probation period, the Claimant was absent from work for 2 days due to morning sickness.  Shortly after she returned to work, she was told her performance was poor and was dismissed from her employment.

In the claim before the Employment Tribunal, the Claimant alleged her line manager had influenced the owner of the business, who dismissed the Claimant, by making disparaging comments about the pregnancy and arguing that she was dismissed for that reason and not because of her performance. The Employment Tribunal found that the manager had been motivated by the Claimant’s pregnancy in the way in which she presented this information to the dismissing officer (who then relied on it to dismiss) and that she had been dismissed for pregnancy-related reasons.

Appeal

The Respondent appealed on the basis that the Tribunal had not appropriately considered who was responsible for the dismissal and what knowledge they had of the pregnancy. The Employment Appeal Tribunal held, applying the Court of Appeal case of Reynolds v CLFIS (UK) Ltd, that when deciding whether an individual has been dismissed for a discriminatory reason, a Tribunal should consider only the intention of the person who makes the dismissal decision and not any other members of staff that may be indirectly involved.

The case was remitted to the Tribunal for an analysis of whether the decision was made solely by the director or whether it was a joint decision.

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