Discrimination in Alcedo Orange v Ferridge-Gunn

Looking behind the decision-maker’s motivation in discrimination cases

The case of Royal Mail Group v Jhuti is authority for the fact that, in exceptional whistleblowing cases, it is possible to look behind the motivation of the decision-maker who dismissed an employee and consider the influence of others who have been motivated by the employee’s status as a whistleblower in putting evidence before that decision-maker.

In this way a dismissal can be found to be because of whistleblowing even if the decision-maker was not aware of that fact themselves.

However, the same approach cannot currently be followed in cases where the allegation is that a dismissal is discriminatory. This is because the Court of Appeal case of Reynolds v CLFIS (UK) Ltd remains good law.

This case held that when deciding whether an individual has been dismissed for a discriminatory reason a tribunal should only consider the motivation of the person who makes the decision to dismiss, not other employees who are indirectly involved.

The Employment Appeal Tribunal recently had cause to remind the tribunal of this case.

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The Case

In Alcedo Orange v Ferridge-Gunn the Claimant told her manager she was pregnant and was dismissed a few days later. The dismissing officer relied on information he had been provided with by the Claimant’s manager in deciding to dismiss.

The Decision

The tribunal concluded 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). They concluded that the Claimant had been dismissed for pregnancy-related reasons.

The EAT sent the case back to the tribunal for them to look at it again in light of Reynolds. They should not have looked beyond the motivation of the decision-maker. They suggested that, if the Claimant felt that her manager’s actions were discriminatory, she should apply to amend her claim to allege that the manager discriminated against her in terms of the information she provided to the decision-maker.

What Can We Learn?

This case is a good reminder that tribunals will only look behind the decision-maker’s reasoning and thoughts in unfair dismissal cases in very limited circumstances.