Can discriminatory pressure on a decision maker amount to joint decision-making?

Article

21 November, 2017

Metropolitan Police v Denby UKEAT/0314/16/RN [2017]

The Claimant, a male officer, was leader of a group within a local force which was consisted of mainly male officers. There was a clear deficiency in gender diversity within this particular group of officers.

Deputy Assistant Commissioner, Maxine De Brunner, had concerns over the lack of gender equality within the group referred to above after a series of allegations were made surrounding the claiming of overtime, amongst other things. Ms. De Brunner's response was deemed to be far stricter than her response to similar complaints raised against a female officer around overtime, which formed the basis of the Claimant's discrimination claim.

The Employment Tribunal found that Ms. De Brunner had exerted influence of a discriminatory nature on a more junior decision maker in the decision to refer the Claimant for an investigation into potentially criminal conduct.

One of the Defendant's grounds of Appeal within the EAT proceedings was that the Employment Tribunal had erred in its interpretation of case law on this point (CLFIS v Reynolds), specifically that the junior decision maker was an "innocent agent" and did not act with discriminatory motivation.

The EAT failed to agree with this assertion, judging the principle in CFLIS to have been properly applied by the Employment Tribunal. The EAT gave the Claimant leave to amend his pleading on the sixth day of proceedings in order to take into account the inclusion of Ms De Brunner as a joint decision maker.

The EAT, in its judgement, stated that the CFLIS principle should not be used as a mechanism in order to escape liability following instances of deliberately opaque decision making.

This represents a clear warning to staff members charged with hearing disciplinary hearing to ensure that they are not influenced by other members of staff (more senior or not) as this could present problems if the matter proceeds to a Tribunal where it will be thoroughly scrutinised.

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