In deciding whether a dismissal (or other act) by a sole decision-maker is direct discrimination, the court looks only at the motivation of that decision-maker. However inputs into the decision, such as reports, could be separate acts of discrimination. Also it is different where a decision was made jointly.
2015, Court of Appeal (bailii.org)
The claimant was dismissed at age 73, and claimed age discrimination. The decision to dismiss was made by the UK General Manager of Canada Life as a result of a presentation by the Managing Director of the Division, with input from another member of staff. The presentation expressed concerns about the claimant’s way of working (eg all from home due to responsibilities as a carer, issues of communicating with her), though it did not not actually recommend dismissal.
The employment tribunal held the decision to dismiss was taken solely by the General Manager, on the basis she was not providing a satisfactory service which was a non-discriminatory reason.
Held by the Court of Appeal: In deciding whether the dismissal was discrimanatory, the tribunal was entitled not to consider whether the Managing Director presenting the report was motivated by age. Where there is a sole decision-maker for an act which is alleged to be discriminatory, the court has to look at the mental processes of that decision-maker alone, here the General Manager.
However there can still be a claim for discrimination by other staff. A presentation or report etc by another member of staff motivated by age or another discriminatory ground can itself be direct discrimination. This would have to be claimed as a separate act of discrimination. The employer will be liable assuming it is done in course of employment. The court said there will occasionally be cases where the claimant justifiably only appreciates at a late stage that the true discriminator may have been not X but Y. A late challenge to Y’s act may be out of time, but the employment tribunal’s powers to extend time were ample to enable it to do justice in a case where the claimant has a good excuse for the late discovery of the proper target of her claim.
It would be different if this were in truth a case where the decision to terminate the claimant’s contract had been made jointly by the General Manager and others. Then the tribunal would have to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision.
