Age Discrimination: Burden of Proof

The thought process of the alleged discriminator

A recent case in the Court of Appeal has dealt with the question of age discrimination and the correct approach to determining if the decision to terminate a consultancy agreement was on the grounds of the consultant’s age.

The Law

The Equality Act 2010 provides protection for employees, certain self-employed consultants, contractors and workers, from various types of discrimination on the basis of a ‘protected characteristics’.

Protected characteristics include:

Age

Disability

Gender reassignment

Marriage and civil partnership

Pregnancy and maternity

Race

Religion or belief

Sex

Sexual orientation.

Direct discrimination arises in situations where because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Employers can be vicariously liable for acts of discrimination of their employees and employees can also have individual liability for discrimination.

The Facts

In this case Dr Reynolds worked for CLFIS (UK) Limited (‘CLFIS’) as their Chief Medical Officer from 2006 under a consultancy agreement. She had previously been an employee for over 20 years but for this particular role she was a consultant. This meant that although she had to provide personal service to the Employer she did not have the same rights as an employee.

At the age of 73 her consultancy agreement was terminated by the UK General Manager, Mr Gilmour. It was alleged that there were problems with Dr Reynold’s performance in the role and she was given notice.

Dr Reynolds made a claim for direct age discrimination alleging that the reason for the termination of the consultancy agreement was her age.

At the initial Employment Tribunal hearing the Tribunal accepted that Dr Reynolds had a prima facie case for age discrimination however they did not uphold her complaint as they decided that CLFIS had a good non-discriminatory explanation for the decision to terminate the consultancy agreement. The Tribunal had considered Mr Gilmour’s mental processes and believed that he genuinely felt that Dr Reynolds had not met the required standards of performance. In addition to this the Tribunal took into account the fact that CLFIS had other employees in the same age range and one medical officer who had worked until aged 90.

Dr Reynolds appealed on the basis that the Tribunal had acted in error in relying on the motivation of Mr Gilmour in making his decision to terminate her agreement. She argued that the Tribunal should have taken into consideration the involvement of others in the business who had helped to shape and motivate Mr Gilmour’s decision.

Dr Reynolds was successful with her appeal and CLFIS appealed to the Court of Appeal.

The Decision

At the Court of Appeal they decided that the first Tribunal had been right to focus on the motivation and thoughts of Mr Gilmour as it had been concluded on the facts that it was Mr Gilmour who had made the decision to terminate and he had acted alone in doing so.

Further to this they decided that as Dr Reynolds had not relied (in her claim) on the fact that other employees had influenced Mr Gilmour’s decision making, it did not fall for consideration in the case.

Points to Note

This case serves as a helpful reminder of the wider group of people who may be covered by protection from discrimination. Whilst Dr Reynolds was not an employee and did not qualify for protection from unfair dismissal, as a consultant she did have protection from discrimination.

At the time Dr Reynolds made her Employment Tribunal claim she had made it clear that as far as she was concerned Mr Gilmour was the discriminator and she did not know that other employees may have played some role in influencing his decision. This only came to light when witness evidence was exchanged, which meant that there was limited reliance that could be placed on this issue.

In any case of termination of employment or consultancy arrangement it is important to ensure that you can provide some legitimate justification for termination and that this is recorded in writing, just in case you do find yourself faced with a discrimination claim.

You can read the full judgement here

If you have any questions, comments or experience in practice then please leave a comment below or email [email protected]


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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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