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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439 (30 April 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/439.html Cite as: [2015] IRLR 562, [2015] WLR(D) 197, [2015] ICR 1010, [2015] EWCA Civ 439

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Employment Appeal Tribunal
Mr Justice Singh

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th April 2015

Lord Justice Underhill :

INTRODUCTION

1. The Claimant in these proceedings, Dr Mary Reynolds OBE, was for many years the doyenne of medical underwriting in the insurance business in the UK. She started work for Canada Life in 1968 and in due course became its Chief Medical Officer ("CMO"). Her employment came to an end in 1992, but thereafter she continued to work as CMO under a consultancy agreement, which was renewed in 2006: latterly there were three other Medical Officers in position. The company in the Canada Life group which was the other party to the consultancy agreement was CLFIS (UK) Ltd, which is the Appellant before us: I will refer to it simply as "Canada Life".
2. The consultancy agreement was terminated on 31 December 2010, when the Claimant was 73 years old. She brought proceedings in the Employment Tribunal claiming unfair dismissal and/or that the termination of the agreement constituted (direct) age discrimination. The claim for unfair dismissal was dismissed at a pre-hearing review on the basis that she was not an employee. The claim for age discrimination was heard by a tribunal sitting in Bristol, chaired by Employment Judge Mulvaney, over four days from 25 to 28 February 2013. It is regrettable that the claim took so long to come on; but it appears that an earlier hearing had to be adjourned because the Claimant was ill. By a Judgment and Reasons sent to the parties on 4 April 2013 the Tribunal dismissed the claim.
3. The Claimant appealed to the Employment Appeal Tribunal. The appeal was heard on 15 April 2014 by Singh J sitting alone. By a judgment handed down on 21 May 2014 he allowed the appeal and remitted the claim to be heard by a fresh tribunal.
4. This is an appeal against that decision. Canada Life has been represented before us by Mr Daniel Tatton-Brown of counsel, who also appeared in the ET and the EAT. The Claimant has been represented by Mr Timothy Pitt-Payne QC. Mr Pitt-Payne QC also appeared in the EAT, but before the ET the Claimant was represented by Mr John Bowers QC.

THE FACTS IN OUTLINE

5. The issues raised by the appeal do not depend on the details of the facts, and for the purposes of introduction I need only give a bare outline.
6. There had for some time prior to the termination of the Claimant's contract been dissatisfaction with her performance on the part of some of those within Canada Life to whom she provided a service. The nature of that dissatisfaction is summarised in para. 9.25 of the Tribunal's Reasons, which I set out at para. 18 (1) below. As there appears, the criticisms were not of the quality of her advice but of her ways of working. One problem was that she did all her work from her home in South Wales, principally (on the Tribunal's findings) because she was the primary carer for her disabled sister^[1].
7. On 2 February 2010 Mr Ian Gilmour, the General Manager of Canada Life in the UK (being its most senior UK executive), visited the headquarters of the Group Insurance Division in Bristol. He was given a series of presentations, including one by Mr Ian McMullan, the Managing Director of the Division, about the CMO service which drew attention to various perceived problems with the Claimant's performance. Some of the input for the presentation came from the Director of Claims Management Services, Mr Mike Newcombe. Although Mr McMullan's presentation ("the Bristol presentation") did not go so far as to recommend dispensing with the Claimant's services, Mr Gilmour understood that to be the consequence of the views expressed; and he decided that he should take that step. There were also discussions following the presentation between Mr McMullan and Mr Newcombe and the Executive Director of Corporate Resources, Ms Tracey Deeks (who was in charge of Human Resources): see para. 9.23 of the Reasons (para. 18 (1) below).
8. On 11 June 2010 the Claimant was given notice by Mr Gilmour of the termination of her consultancy contract, although she continued to work under a separate agreement with more limited responsibilities until 31 December 2011. Mr Gilmour did not relish the task of breaking the news to the Claimant, and in a misguided attempt to shuffle off some of the responsibility for his decision he told her, untruthfully, that Canada Life was under pressure from the Financial Services Authority to provide for "succession planning". When in due course the truth came out the Claimant was understandably very aggrieved. However the ET held that Mr Gilmour's conduct in this regard, though not to his credit, did not shed any light on the reason for the decision itself.

THE BACKGROUND LAW

9. It is common ground that the applicable provisions are those of the Employment Equality (Age) Regulations 2006: the Equality Act 2010 was not in force at the time that notice to terminate the agreement was given. The Regulations (and indeed the equivalent provisions of the 2010 Act) were enacted in order to give effect to the UK's obligations under EU Council Directive 2000/78/EC (the so-called "Framework Directive").
10. Regulation 3 (1) of the 2006 Regulations reads as follows:

"(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if—

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim."

Although I have set out the paragraph in its entirety, we are in this case only concerned with head (a) – that is, so-called direct discrimination. Nor, if conduct falling within that head is shown, does Canada Life seek to rely on the final part of the paragraph – that is, it does not claim that such conduct was justified.

11. As regards direct discrimination, it is now well-established that a person may be less favourably treated "on the grounds of" a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the "mental processes" of the putative discriminator, whether consciously or unconsciously, to any significant extent: we were referred in particular to the discussion in Amnesty International v Ahmed [2009] ICR 1450. The classic exposition of the second kind of direct discrimination is in the speech of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501, which was endorsed by the majority in the Supreme Court in the Jewish Free School case, [2009] UKSC 15, [2010] 2 AC 728. Terminology can be tricky in this area. At p. 512A Lord Nicholls uses the terminology of the discriminator being "motivated" by the protected characteristic, and with some hesitation (because of the risk of confusion between "motivation" and "motive"), I will for want of a satisfactory alternative sometimes do the same. Lord Nicholls also makes clear that there is no difference between referring to the "ground" (or "grounds") of the treatment complained of and the "reason" for it (p. 511 D-E), and I will use both terms.
12. Regulation 7 (2) (d) renders it unlawful to discriminate against an employee "by dismissing him, or subjecting him to any other detriment". "Employee" is defined in regulation 2 (2) so as to cover any person employed under a contract "personally to do any work"; and regulation 7 (7) defines dismissal so as to cover the termination of such a contract. Canada Life accepts that the Claimant was an employee for this purpose, and thus also that the termination of her consultancy agreement constituted a dismissal within the meaning of the Regulations.
13. Most employers are corporate and most acts of discrimination are done by individual employees or agents. Liability in this regard is governed by regulations 25 and 26, which read (so far as material) as follows:

"25 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.

(3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

26 Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description.

(2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under regulation 25 (or would be so liable but for regulation 25(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3)-(4) ..."

14. I should spell out the effect of those provisions (which are substantially identical to their cognates in the other pre-2010 discrimination legislation and in the 2010 Act).  There is a full analysis by Sedley LJ in Miles v Gilbank [2006] EWCA Civ 543, [2006] ICR 1297, at paras. 44-51 (pp. 1309-10).   But, in short, the primary liability for discrimination is placed by regulation 7 on the employer, who will be liable for the acts of his employees acting in the course of their employment (regulation 25 (1)), subject to the "reasonable steps" defence in regulation 25 (3).  However, the individual employee who does the actual act of discrimination is also liable on the basis that he has "aided" his employer to do the act in question, and that is so even where the employer has escaped liability by reason of the reasonable steps defence – regulation 26 (1) and (2).  Thus, although the route adopted is different, the end result is substantially the same as in the case of vicarious liability for a common law tort: both employer and employee are liable for the act complained of, and the claimant has the choice of proceeding against either or both.^[2]  It is probably most common for a claimant to proceed only against the employer, but it is not at all uncommon for one or more of the alleged individual discriminators to be joined as well; and occasionally (e.g. where the employer is insolvent) such an individual may be the only respondent or may find himself solely liable because the employer has successfully invoked the reasonable steps defence (as happened in the well-known case of Yeboah v Crofton [2002] IRLR 634).
15. Regulation 37 contains the usual burden of proof provisions, as follows:

"(1) This regulation applies to any complaint presented under regulation 36 to an employment tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—

(a) has committed against the complainant an act to which regulation 36 being the provision conferring the relevant jurisdiction on the employment tribunal] applies; or

(b) is by virtue of regulation 25 (liability of employers and principals) or 26 (aiding unlawful acts) to be treated as having committed against the complainant such an act, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act."

The effect of those provisions (or, strictly, the cognate provisions in the other discrimination legislation) has been authoritatively expounded in a line of decisions culminating in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931, and Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867. In brief, a tribunal must first decide whether a claimant has established a prima facie case of unlawful discrimination (in the sense elucidated in Madarassy, at paras. 56-57); if she has, the burden shifts to the respondent to prove a non-discriminatory explanation.

THE REASONING OF THE ET AND THE EAT

THE ET

16. I should start by saying that the reasoning of the ET is set out with commendable clarity and care.
17. Paras. 1-8 of the Reasons deal with various introductory matters. At para. 4 the Tribunal records the witnesses from whom it heard evidence, who included Mr Gilmour. At para. 5 it notes that Mr McMullan had been unable to attend through illness: it says that it has read his witness statement, though his absence "impacted on the weight that [it] attached to his evidence". At para. 8.3 it records that the Claimant applied at the hearing for Mr McMullan's evidence to be excluded and for an order that Canada Life call Mr Newcombe to give evidence in his stead but that it refused the application on the basis that it was for the parties to decide what evidence to adduce.
18. The Tribunal then proceeds to give its findings of fact at para. 9, in 55 sub-paragraphs. As to these, I have already given a brief outline. I need only note the following points:

(1) The Tribunal found that the decision to terminate the Claimant's contract was taken solely by Mr Gilmour. This is clear from paras. 9.22-9.24 of the Reasons, which read (so far as material) as follows:

"9.22 Mr Gilmour attended Mr McMullan's presentation and it was his evidence that whilst there was not a clear steer from the presentation that the claimant should be replaced it was clear to him that the current CMO provision was not meeting the respondent's needs and that the situation had to be addressed. The presentation made clear that the group business was not happy with the current model of service provision from the CMO. Mr Gilmour's evidence was that having listened to the presentation he made up his mind that the claimant was not delivering the service the group needed and could no longer be lead CMO. In his witness statement he said that he 'formed the view that she was not someone who would be able to help the respondent in the journey to becoming a more modern business with up to date and secure communications, training and coaching case managers on site, and increasing the market share within the group as the individual business work was diminishing'.

9.23 Although the report did not go so far as to recommend dispensing with Dr Reynolds' services, we accepted that this was the understanding Mr Gilmour took from the presentation and it was confirmed by Ms Deeks in her evidence that she had discussions with Mr McMullan and Mr Newcombe following the presentation in which they confirmed that ideally rather than continuing work around the deficiencies of the current provision it would be preferable if a complete change could be effected by the termination of the claimant's contract.

9.24. Mr Gilmour decided that he would bring the respondent's relationship with the claimant to an end. He said that in view of her long association with the company and her unique position within it he would give her a 'soft landing' by retaining her services on a reduced level gradually reducing her commitment down over the course of three years. …"

(2) At para. 9.25 the Tribunal records Mr Gilmour's evidence as to his reasons for his decision as follows:

"The decision was based on the fact that the claimant was not providing the service required by the respondent in the following respects: she did not attend the Bristol office which meant that she had limited input into staff training and development and that face to face discussions had to be conducted at her house in Wales; she did not use e-mail; she required that papers were received by fax or post but not recorded delivery (as she did not wish to have to leave the house to collect mail if she was out when it was delivered); she was not prompt in her turnaround times; did not provide her advice in writing, preferring to dictate it over the phone to the assessors; she was resistant to the engagement of a wider panel of medical experts. These were all factors which led him to conclude that she must be replaced."

(3) At para. 9.29 the Tribunal says:

"Mr Gilmour did not consider whether the claimant should be given an opportunity to address the deficiencies in the service she provided and on being asked at the hearing why he did not, his evidence was that he believed that she would not have changed, that she would have filibustered and that in any event there was no need to raise concerns with her about her performance because she was a self employed consultant and that there was no obligation on the respondent to give her an opportunity to improve."

19. Paras. 10-33 contain the Tribunal's reasoning and conclusions. It can be sufficiently summarised for present purposes as follows:

(1) Paras. 12-13 set out various uncontentious matters of law.

(2) The Tribunal follows the structure of the burden of proof provisions as expounded in Igen. At paras. 19-20 it decides that the Claimant had shown a prima facie case that her age had been at least part of the reason why she was dismissed. It gives its reasons for that conclusion at para. 19 as follows:

"The reasons that we considered that the burden of proof had been discharged by the claimant were that the claimant's work was very highly regarded as was evidenced by most of the witnesses at the tribunal; the fact that Mr Gilmour, who was responsible for the decision to terminate the contract, carried out that decision in a covert and underhand way (which inevitably led us to scrutinise more closely his reasons for taking that decision). There were also references made by Mr Gilmour to the claimant's age, particularly in the phone call of the 4 March 2010 during which Mr Gilmour had made references to the need for succession planning. Finally we were concerned about the fact that the respondent made no attempt to ask the claimant to address the deficiencies in her performance or to adapt to the changes that were required in the service provision and considered that this may have been based on a stereotypical assumption that, as an older person, she would be unable to change or adapt to the new approach that they required."

(I should say that the reference to the burden of proof being "discharged" is not quite right. What the Tribunal meant, as the context makes clear, is that the burden had shifted.)

(3) Accordingly the burden of proof shifted to Canada Life to show a non-discriminatory explanation for its decision. In the remaining paragraphs the Tribunal considers the explanation advanced by Canada Life – i.e. essentially, that it was dissatisfied with the Claimant's performance and did not believe that she was capable of change – and decides that that was indeed the only reason for her dismissal and that it was unrelated to her age. I need not summarise the generality of the Tribunal's reasoning on this aspect, still less set it out in full, since it is not challenged on this appeal (subject to the issue considered under head (A) below). But I should set out how it dealt with the final point identified in para. 19 – that is, the possibility that Canada Life made a stereotypical assumption that, as an older person, the Claimant would be unable to change. At paras. 29-30 it said:

"29. We were concerned about the fact that the respondent had not sought to engage with the claimant by informing her of the changes that they wished to make to the service and allowing her an opportunity to adapt to meet those requirements. The claimant contended that this indicated a stereotypical assumption that an older person would not be able to respond to new ideas, be modern or to change. Mr Gilmour was of the view that the claimant would not change in the manner required. It was his evidence that the claimant would not be able to attend the Bristol office because she was sole carer for her sister who was disabled. It was clear that the claimant did not have IT skills and there was no indication that she intended or wished to acquire them. The claimant would not accept recorded delivery mail and lacked flexibility in her methods of communication. It was clear from her evidence to the tribunal that the claimant believed that the manner in which she provided the services was appropriate and adequate and she indicated that she would challenge requests to do things differently if she did not agree with the reasons given for the request. The claimant had not given any indication that she was willing to find a way of addressing the respondent's expressed preference for more face to face meetings and attendance at the Bristol office, a preference which we were satisfied that the claimant was aware of, it was telling that the claimant had not seen fit to make any visits to the Bristol office in at least five years to meet staff in person with whom she had regular telephone contact.

30. Mr Gilmour had known the claimant for many years and had worked with her. He knew of her personal circumstances and her devotion to the personal care of her disabled sister. We were satisfied that he genuinely believed from his knowledge of the claimant that she was unlikely to change to adapt to the new requirements of the respondent. Whilst a reluctance to embrace change may be a characteristic that is attributed to older people, and an assumption in any particular case that that characteristic must be present because of the individual's age would be discriminatory, we concluded that there was no such assumption in this case. Mr Gilmour's view of her capacity to change was based on his knowledge of the claimant and was, we concluded, a genuine view held by him."

(4) The Tribunal's conclusion, at para. 32, reads:

"For these reasons we concluded that the reason that the respondent terminated the 2006 agreement was not in any sense related to the claimant's age. It was because of the respondent's genuine belief that the claimant was not providing the CMO service in the manner it required. It was not under an obligation to give the claimant an opportunity to change as she was a self-employed consultant and in any event it held a genuine view that the claimant would not meet the new requirements, a belief which itself was based on its own knowledge of the claimant and was not anything to do with her age."

20. I should note at this stage, because it is central to the issues in this appeal, that throughout that reasoning the Tribunal focused entirely on the motivation of Mr Gilmour, as the responsible decision-maker. That is in accordance with its self-direction at para. 18 of the Reasons, which reads:

"In view of our finding that there was nothing inherently discriminatory in the decision taken to terminate the claimant's contract, it was therefore necessary to consider Mr Gilmour's mental processes to assess whether the termination of the contract was on the grounds of the claimant's age or not."

THE EAT

21. The Claimant's appeal to the EAT raised three grounds, which were pleaded as follows:

"(1) The Employment Tribunal misdirected itself that it was necessary to consider only Mr Gilmour's mental processes.  It is contended that the Tribunal erred by focussing solely on Mr Gilmour and disregarding the involvement of other individuals in the process leading to the termination of the Claimant's contract.

(2) Having decided that the burden of proof had shifted, the Tribunal erred by failing to take into consideration (a) the fact that Mr McMullan had not given oral evidence; and (b) the fact that Mr Newcombe had not been called to give evidence.

(3) The Tribunal erred in failing adequately to address whether the Respondent's alleged belief that the Claimant was incapable of changing the way in which she worked was itself an age-related belief."

However, Mr Pitt-Payne acknowledged that the second ground stood or fell with the first.

22. Singh J allowed the appeal on ground (1). At para. 38 of his judgment he rejected an argument by Mr Pitt-Payne that Mr Gilmour was not the only decision-maker: he said that that was a question of fact, and the ET's findings could not be challenged. But he said that that was not necessarily the end of the matter. He continued:

"39.              The second submission that Mr Pitt-Payne makes is that, even if the sole decision-maker was Mr Gilmour, his decision was shaped and informed by others within the Respondent organisation.  As a matter of fact, Mr Tatton-Brown accepts that but disputes its significance as a matter of law.  He submits that, in such circumstances, the Employment Tribunal is entitled (indeed required) to focus on the mental processes of the decision-maker and no one else.  It is this dispute of law which lies at the heart of the present appeal.

40.              It is not difficult to think of many situations in the employment context in which this issue may arise.  For example, the actual decision to terminate an employee's contract may be taken by a senior manager, indeed it may be that, within the structure of the relevant employer, only that manager has the power of dismissal.  However, that person may have no personal knowledge of the employee and may have to rely entirely on reports which have been prepared by others, for example about an employee's performance or conduct.  Mr Pitt-Payne submits that, if the mental processes of those who prepared such reports are based on discriminatory grounds, then in principle the Tribunal must examine those mental processes and cannot confine itself to those of the eventual decision-maker alone.  Otherwise a real injustice might be done, where for example the authors of the underlying reports are acting for reasons which are discriminatory and their reports have a significant influence on the decision to dismiss.

41. It would appear that the precise point of law that arises has not been the subject of direct authority in the past. However, it seems to me that some assistance as to the correct approach in principle can be found in dicta in earlier cases."

23. He then went on to give his reasons for accepting Mr Pitt-Payne's submission. As trailed at para. 41 of the judgment, he relied on two authorities in particular. I take them in turn.
24. First, he referred to a passage from the speech of Lord Nicholls in Nagarajan at pp. 512-3, which reads as follows:

"Decisions are frequently reached for more than one reason.  Discrimination may be on racial grounds even though it is not the sole ground for the decision.  A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor.  No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible.  If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out."

He observed, at para. 42:

"In my view, Mr Pitt-Payne's submissions are consistent with that passage and derive some support from it.  If a prohibited ground (whether race, sex, age or another prohibited ground) had a significant influence on the outcome, it may be said that discrimination has been made out, even if the person who makes the actual decision has not acted for that reason if one examines only the mental processes of that person."

25. Second, he referred to the burden of proof provisions as explained in Igen v Wong. He said, at para. 43:

"As [Mr Pitt-Payne] submits, the present complaint was not brought against Mr Gilmour or any other individual: it was brought against the Respondent organisation.  The Employment Tribunal concluded on the evidence before it that the Claimant had done enough to shift the burden of proof to the Respondent.  It was then for the Respondent as an organisation to prove that the decision to terminate the Claimant's contract was 'in no sense whatsoever' on the ground of age.  For the Tribunal properly to be able to assess whether the Respondent had discharged that burden of proof, it had to consider the mental processes of others whose views had a significant influence (to use Lord Nicholls' phrase) on the eventual decision to terminate.  In the present case the Employment Tribunal found as a matter of fact that the views of others did play that part, in particular the presentation by Mr McMullan and Mr Newcombe on 2 February 2010.  Yet it failed to examine the mental processes of those persons to see if they were based on the prohibited ground of age."

At para. 44 he tied that reasoning into regulation 25 by accepting Mr Pitt-Payne's submission that

"... the effect of Regulation 25 is that, where a relevant employee's acts are attributable to the Respondent by virtue of Regulation 25, it cannot be said to have discharged the burden of proof placed upon it in circumstances where the Tribunal has failed to address the mental processes of all the relevant employees but has focussed exclusively on the mental processes of just one (here Mr Gilmour)."

26. At para. 45 Singh J rejected a submission by Mr Tatton-Brown that this ground was not open to the Claimant because it did not represent how the case was argued in the ET. He said:

"In my judgment, the Claimant is not trying to raise a new point of law which should have been raised below but seeks to criticise the way in which the Tribunal went about its task: in particular, Mr Pitt-Payne submits that, once the Tribunal had found that the burden of proof had shifted to the Respondent, it was required to analyse correctly the way in which the Respondent could discharge that burden.  He submits that, in seeking to carry out that analysis, the Tribunal misdirected itself in law and that error of law should be corrected by this appeal tribunal.  I agree."

27. As I have already observed, Singh J's acceptance of ground 1 meant that ground 2 did not arise. As to ground 3, he said this:

"In my judgment this third ground amounts to no more than a disagreement with the Employment Tribunal's findings of fact as to the mental processes of Mr Gilmour.  The passages I have already quoted from the Tribunal's judgment, in particular at paras 27 and 29-30 [those references being to paras. 19 and 26-27 of the ET's Reasons] make it clear that the Tribunal was alive to the question of possible stereotyped assumptions lying at the root of Mr Gilmour's mental processes but rejected that suggestion on the facts of this particular case."

28. Singh J remitted the claim to the ET for redetermination in accordance with his decision on ground 1. As to whether the remittal should be to the same tribunal, he said, at para. 55:

"Both parties have reminded me of the decision of this appeal tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  I have taken careful account of the various factors that, in accordance with that judgment, are relevant in deciding whether a case should be remitted to the same tribunal or a differently constituted one and have also taken careful account of the parties' submissions.  After weighing up those various factors, I am persuaded by Mr Pitt-Payne that the case should be remitted to a differently constituted tribunal.  This is particularly so for the following reasons.  First, in my view, the Tribunal fell into fundamental error, as it failed to ask itself the right legal question in this case.  Secondly, there is a risk that the Tribunal (however subconsciously) would be tempted to reach the same decision as before.  As Mr Pitt-Payne submits, there is a real risk of apparent bias (although he makes no suggestion of actual bias).  Thirdly, the lapse of time since the last hearing means that the same Tribunal would not have a particular advantage over a differently constituted one by having a clear recollection of the evidence."

THE APPEAL

29. The Appellant's Notice pleads four grounds of appeal, which I can summarise as follows:

(1) Canada Life contends that the ET was right in law to focus exclusively on the mental processes of Mr Gilmour since he was the sole decision-taker; and that the EAT was accordingly wrong in law to reverse its decision on this ground.

(2) Even if the mental processes of Mr McMullan and Mr Newcombe were in principle relevant, the Claimant had not in fact advanced any claim in the ET on that basis, and she was accordingly not entitled to complain in the EAT about the ET's failure to consider it.

(3) Even if the mental processes of Mr McMullan and Mr Newcombe were in principle relevant, and the point was open to the Claimant, no prima facie case under the burden of proof provisions had been established in their regard: the case found by the ET had related specifically and only to Mr Gilmour, and no such finding had been made in relation to the Bristol presentation.

(4) If the case was to be remitted it should have been to the same tribunal.

30. By her Respondent's Notice the Claimant seeks to support the EAT's reasoning on the points on which she succeeded by various particular arguments which I will deal with as I address Canada Life's challenges on those points. But she also challenges Singh J's reasoning in two respects. First, she contends that he was wrong to find that Mr Gilmour was the only decision-taker. Secondly, she seeks to revive what was ground 3 before the EAT – that is, that the ET failed to deal properly with the case that Mr Gilmour's belief that the Claimant was incapable of change was "age-related".
31. It is convenient to start by taking together grounds (1) and (2) in the Appellant's Notice, together with the first of the challenges in the Respondent's Notice, since they are all concerned with whether the ET was right to focus exclusively on the motivation of Mr Gilmour. I will then deal with the second point in the Respondent's Notice, and finally with grounds (3) and (4) in the appeal.

(A) THE ET'S FOCUS ON MR GILMOUR

32. The logical starting-point must be the challenge raised in the Respondent's Notice to the ET's finding that Mr Gilmour was the sole decision-maker. If this were in truth a case where the decision to terminate the Claimant's contract had been made jointly by Mr Gilmour and others the Tribunal would have had 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.
33. As to that issue, I agree with Singh J that the ET's finding is unassailable. Mr Pitt-Payne submitted that the findings of fact at paras. 9.22-9.24 of the Reasons (see para. 18 (1) above) showed that Mr Gilmour, Ms Deeks, Mr McMullan and Mr Newcombe were all parties to the decision. I cannot accept that. The findings in question show only that Mr Gilmour reached his decision as a result of information provided, and opinions expressed, by Mr McMullan and Mr Newcombe, both in the Bristol presentation and in later discussions with Ms Deeks which (it is to be inferred) she reported back to Mr Gilmour. That is not the same as them being parties to the decision. Supplying information or opinions which are used for the purpose of a decision by someone else does not constitute participation in that decision. There may be cases where it is difficult to distinguish between the two situations, but the Tribunal was fully entitled to treat this case as one where Mr Gilmour did indeed make the relevant decision on his own. That would be clear enough even if one had regard simply to the sequence of events which it found, but there is in fact the additional point that Mr Gilmour made it clear in his evidence that because of the Claimant's eminence and long service the decision to terminate her contract was a matter for which he had to take sole responsibility: Mr McMullan had, as we have seen, not even recommended it.
34. We are accordingly concerned not with joint decision-making but with a different situation, namely one where an act which is detrimental to a claimant is done by an employee who is innocent of any discriminatory motivation but who has been influenced by information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory. I will refer to this as a case of "tainted information" (treating "information" widely so as to cover also the expression of views). I agree with Singh J that tainted information cases may arise in a variety of different ways, but I will for the purpose of discussion take as an example a case of the kind with which we are concerned here – that is, one where a manager has decided to dismiss an employee on the basis of an adverse report about her from another employee who is motivated by her age. I will refer to the employer as E, the claimant as C, the decision-maker as X and the informant as Y.
35. I agree with Singh J that it would plainly be unjust if in such a situation C had no remedy against E; and that was in fact common ground before us. But the parties differed as to the legal basis on which a remedy should be available. Mr Pitt-Payne's submission was that Y's discriminatory motivation could be treated as the ground, or part of the ground, for C's dismissal, albeit that the actual decision-maker was X; and it seems, though his reasoning was not perhaps quite explicit, that that was also the approach of Singh J. I will refer to this as "the composite approach", because it involves bringing together X's act with Y's motivation. Mr Tatton-Brown submitted that that was illegitimate and that the right approach was to treat Y's report as a discrete discriminatory act, for which E was liable (provided it was done in the course of Y's employment, and subject to the "reasonable steps" defence) by virtue of regulation 25, with C being able to recover for the losses caused by her dismissal as a consequence of that act rather than because the dismissal itself was unlawful. I will refer to this as "the separate acts approach". Mr Pitt-Payne accepted that that was a possible analysis, but he submitted that it was unnecessary and over-complicated and that if it were the only route that would have various unsatisfactory consequences to which I will return below.
36. In my view the composite approach is unacceptable in principle. I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else's motivation. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way the Regulations work, rendering E liable would make X liable too: see the analysis at para. 13 above. To spell it out:

(a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and – assuming we are applying the composite approach – that act was influenced by Y's discriminatorily-motivated report.

(b) X would be an employee for whose discriminatory act E was liable under regulation 25 and would accordingly be deemed by regulation 26 (2) to have aided the doing of that act and would be personally liable.

It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.

37. I do not believe that that conclusion is undermined by either of the authorities referred to by Singh J (see paras. 24 and 25 above). The passage from Lord Nicholls' speech in Nagarajan was not directed at the present question at all. As for Igen v Wong, in my view the burden of proof provisions do not advance the argument on this particular point. What they are concerned with is how the claimant can prove the elements of his or her claim, but they have no bearing on what those elements are. (I have something more to say about the burden of proof provisions in a different context at para. 51 below.)
38. I would add, in the light of Singh J's reference to Nagarajan, that there is in fact a later passage in Lord Nicholls' speech which comes somewhat closer to the issue with which we are concerned. Mr Nagarajan's claim was brought under section 4 (1) (a) of the Race Relations Act 1976, which rendered it unlawful for a person to discriminate "in the arrangements he makes" for (to paraphrase) recruiting new employees. His case was that he had not been offered a job because the interviewing panel was influenced by the fact that he had previously brought a discrimination claim against an associated company of LRT. One of the issues was whether the panel members could be said to have "made the arrangements" for determining whether the applicant should be recruited. That to some extent depended on the meaning of that particular phrase, but Lord Nicholls' analysis went wider. He referred not only to section 4 but also to section 32, which was the equivalent of regulation 25 of the 2006 Regulations. He said, at p. 514 B-C:

"When these provisions are put together, the effect is that on a complaint against an employer under section 4(1)(a) it matters not that different employees were involved at different stages, one employee acting in a racially discriminatory or victimising fashion and the other not. The acts of both are treated as done by the respondent employer. So if the employee who operated the employer's interviewing arrangements did so in a discriminatory manner, either racially or by way of victimisation, section 4(1)(a) is satisfied even though the employee who set up the arrangements acted in a wholly non-discriminatory fashion. The effect of treating the acts of the discriminatory employee as the acts of the employer is that the employer unlawfully discriminated in the arrangements he made for the purpose of determining who should be offered employment by him. Hence in the Brennan case [Brennan v J.H. Dewhurst Ltd. [1984] ICR 52] the employer unlawfully discriminated against women by reason of the discriminatory way the branch manager Mr. French conducted interviews as part of the arrangements made without any discriminatory intent by the district manager Mr. Billing."

That is not on all fours with the present case, because the language of the relevant provision is different. But it is nevertheless noteworthy that Lord Nicholls held the employer liable on the basis of its responsibility for the acts of the specific individuals who had a discriminatory motivation rather than by creating some notional composite responsibility.

39. By contrast, the separate acts approach conforms entirely to the scheme of the legislation. To spell it out:

(1) By making an adverse report about C, Y subjects her to a detriment within the meaning of regulation 7 (2) (d).

(2) If in making the report Y was motivated by C's age his act constitutes discrimination within the meaning of regulation 3 (1) (a).

(3) If that discriminatory act was done in the course of Y's employment, as in practice it would be, then by virtue of regulation 25 (1) it would be treated as E's act; and accordingly E would be liable (unless he could rely on the "reasonable steps" defence).

(4) Y would also be liable for his own act by virtue of regulation 26 (1) and (2).

(5) The losses caused to C by her dismissal could be claimed for as part of the compensation for Y's discriminatory act, since they would have been caused or contributed to by that act and would not (at least normally) be too remote.

40. As I have said, Mr Pitt-Payne advanced a number of criticisms of the separate acts approach. I consider them in turn.
41. First, he said that a focus on Y's prior act ignored the reality of C's complaint, which was about the actual act which caused her loss – namely, in our example, her dismissal. But the legal analysis must depend on which act was in fact discriminatory, not on which most immediately caused the loss. If, for example, C had been dismissed as a result of a (covertly) discriminatory report from a third party – say, a regulator – no-one would think of arguing that the report-writer's discriminatory motivation could be attributed to X, or E, simply because it was the dismissal rather than the report which directly impacted on her.
42. Secondly, he submitted that the separate acts approach was inconsistent with the scheme of regulation 25. I mean no disrespect to Mr Pitt-Payne's characteristically thoughtful submissions when I say that I do not understand this. If anything, for the reasons given above, the boot would seem to be on the other foot.
43. Thirdly, he said that basing recovery only on Y's act might mean that C was not compensated, or not compensated in full, for the loss of her job, since there might be scope for E to take points about causation. I accept that that may be so, but I do not regard it as wrong in principle. In the standard case where the decision to dismiss was based squarely on the report any such argument would be hopeless on the facts. But if in a particular case it was indeed arguable I do not see why it should be objectionable for points on causation, or indeed remoteness, to be taken: E ought not to be liable for a loss which did not in fact flow from Y's discriminatory act, or which was not a sufficiently direct or foreseeable consequence of it.
44. Fourthly, he argued that the separate acts approach was over-analytical and would lead to unnecessary and undesirable complexity in the preparation and presentation of discrimination claims. A claimant will typically only be aware of the particular act or omission which directly impacts on her – such as, in our example, her dismissal – but the tainted information may have been generated several stages back: it might be, for example, that Y's report was itself innocently based on information supplied by fellow employees or third parties who were discriminatorily motivated.^[3] If the possibility that the actual discriminator was someone further back in the process only becomes apparent at a late stage – possibly even at the hearing – and if she switches her fire to the prior acts at that point, will she not be told that she is too late ? Or must she from the start cast her forensic net so wide as to cover everyone who might possibly have contributed to the final decision ?
45. This last point is instinctively attractive, and I take it seriously. Over-complicated analysis is a real problem in the discrimination field and Ockham's razor should be applied so far as possible. But, quite apart from the difficulties of principle, I do not in fact believe that Mr Pitt-Payne's objections are as serious as they may appear at first sight. I would make the following points:

(1) Usually a claim of direct discrimination will stand or fall on the motivation of the person doing the act which immediately impacts on the claimant^[4]. Tainted information cases, while they no doubt occur, are less typical.

(2) Even in cases where the motivation of people involved in the earlier history is potentially relevant to the claim it will by no means always be the case that the claimant is unaware of that history. Where, for example, she has been dismissed following a disciplinary process, she will typically be well aware of the information or views on the basis of which the decision-maker acted. She will in such a case be in a position from the start to decide whether her case is that X or Y, or both, had a discriminatory motivation – or whether she is not sure and wishes to cover all alternatives – and to plead her case accordingly. It is not unknown to see cases pleaded along the lines of "my manager was misled into dismissing me by racist colleagues who gave false evidence against me".

(3) Even in cases where a claimant is genuinely not in a position to know the relevant history, it should only be rarely that she is (reasonably) in the dark about the involvement of the true discriminators until so late in the day as to cause real case management problems. In principle, if E's case is "X had no discriminatory motivation: he relied on Y's report, which he had no reason to believe had anything to do with C's age", that should be apparent from the response to the claim form; and C will then be able, if she chooses, to make it clear that she challenges Y's motivation as well as, or instead of, X's. Issues of this kind should emerge in any well-conducted preliminary hearing, if not before.

(4) I accept that, even so, there will occasionally be cases where C justifiably only appreciates at a late stage – perhaps as a result of disclosure or exchange of witness statements or even in the course of the hearing itself – that the true discriminator may have been not X but Y. In such a case the tribunal may indeed be faced with difficult case management decisions, including whether an adjournment is necessary. But this is not a consequence of adopting the separate acts approach: on the contrary, such a situation is equally liable to arise whichever approach is followed. The difference between the two approaches is ultimately formal rather than substantial, since even on the composite approach C has to prove Y's discriminatory motivation as part of her challenge to X's act; accordingly just the same problems of evidence and case management will arise if she only becomes aware of the need to do so at the last minute. The only potential significance of the formal difference is that on the separate acts approach a late challenge to Y's act would be out of time, whereas on the composite approach it would not be (since the "act complained of" would still be X's act). But the employment tribunal's powers to extend time are ample to enable it to do justice in a case where C has a good excuse for the belated late discovery of the proper target of her claim.^[5]

46. I accordingly believe that the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it.
47. I should, for completeness, mention that reference was made in the course of the submissions before us to the recent decision of this Court in The Co-Operative Group Ltd v Baddeley [2014] EWCA Civ 658. That was a claim of unfair dismissal where, on one view of the facts, the person who initiated the disciplinary process was motivated by the fact that the claimant was a whistleblower but those who took the actual decision to dismiss were not. At para. 42 of my judgment I referred to the well-known statement of Cairns LJ in Abernethy v Mott Hay & Anderson [1974] ICR 323 to the effect that the "reason" for a dismissal connotes the factors operating on the mind of the decision-taker (see at p. 323 B-C). I continued:

"There was some discussion before us of whether that approach was applicable in all cases or whether there might not be circumstances where the actual decision-maker acts for an admissible reason but the decision is unfair because (to use Cairns LJ's language) the facts known to him or beliefs held by him have been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation – for short, an Iago situation. [Counsel for the employer] accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct."

However, it was agreed before us that the difference in the statutory provisions as between the discrimination legislation and the unfair dismissal legislation meant that it was unsafe to read across from one type of case to the other.

48. I have felt obliged to consider at such length the choice between the composite approach and the separate acts approach partly in order to feel firm analytical ground beneath my feet, but also because it is of some general importance and was the subject of extensive submissions from counsel. However it does not in fact seem to me to be decisive of the issue with which we were concerned. On either approach the motivation of those whose input influenced Mr Gilmour's decision was potentially relevant to the claim. But in my view it was only actually relevant, and the Tribunal was only obliged to consider it, if the Claimant in fact sought to rely on it. It cannot be an error of law for an employment tribunal not to address a case which was not advanced before it.
49. I turn therefore to see how the case was in fact advanced. I take it in stages:

(1) The pleading in the claim form was short and in fairly general terms, though it identified the act complained of as the Claimant's dismissal and implicitly identified Mr Gilmour as the decision-maker. Nothing was said about the involvement of anyone else. That is not a criticism. No doubt it reflected the state of the Claimant's information at that stage: it should be recalled that she had initially been given a misleading explanation of why the agreement was being terminated.

(2) Canada Life's response was not as explicit as it should have been in explaining the process by which the decision to terminate the agreement was reached. It said only (para. 7) that "in February/March 2010 the Respondent undertook the review of its Chief Medical Officer resource", which led to a decision no longer to have a single lead CMO. It did not say who conducted that review, though the implication is that the decision was Mr Gilmour's; nor did it refer to the Bristol presentation. I would have expected the Claimant's advisers to have sought further information and/or documents, but we were not told whether that occurred, and I will assume in her favour that it was reasonable that she remained in the dark about the Bristol presentation and thus the role of Mr McMullan and Mr Newcombe.

(3) We were not told about when disclosure took place, but apparently witness statements were exchanged about a fortnight before the hearing, and it is clear that by that stage the parties had the relevant documents, including the text of the Bristol presentation.

(4) The exchange of witness statements was surprisingly late, but we were not told the reasons. We have seen both Mr Gilmour's and Mr McMullan's witness statements, which between them make clear the role of the Bristol presentation in triggering the process that led to the termination of the Claimant's contract. At that stage, if not before, it will have been clear that Mr Gilmour had been influenced by Mr McMullan's input. It would have been open to the Claimant from that point onwards, if not sooner, to allege that that input was tainted by age discrimination.

(5) The parties submitted written closing submissions to the Tribunal. It is clear from the terms of the Claimant's submissions, as indeed it is from the Tribunal's Reasons, that her case was put squarely on the basis that Mr Gilmour had been motivated in his decision by the Claimant's age, and that he had been vigorously cross-examined on that basis. Several pages are devoted to identifying the basis on which the Tribunal was invited to draw that inference. No such allegation was made about Mr McMullan or Mr Newcombe: there was a one-sentence submission that the Tribunal should place no weight on "Mr McMullan's evidence", since no evidence had been given by Mr Newcombe (see para. 17 above), but that cannot amount to a case that his input into Mr Gilmour's decision was discriminatorily motivated.

50. It is plain from that analysis that the reason why the Tribunal's focus was exclusively on Mr Gilmour was that was the only case advanced by the Claimant. In my view it follows that Canada Life's ground (2) is well-founded: as I have said, the Tribunal cannot be said to have erred in failing to address a case that was never advanced. Mr Pitt-Payne sought to attach some significance in this context to the Claimant's application for Mr Newcombe to be called to plug the gap left by the absence of Mr McMullan, but I cannot see how that helps him. I can see that if Mr Bowers had made that application on the explicit basis that the Claimant was challenging the motivation of the authors of the Bristol presentation, and that for that reason there ought to be a live witness on that issue (though in fact the absence of a live witness should have been to her advantage), that would have made it clear that his case was not limited to a challenge to the motivation of Mr Gilmour. But Mr Pitt-Payne accepted that he could not say that that was how the application had been put; and it is clear from the closing submissions that no such case was advanced.
51. I have set out at para. 25 above Singh J's reason for rejecting Mr Tatton-Brown's submission on this point. As I understand it, he relies on the burden of proof provisions in regulation 37, and Mr Pitt-Payne sought also to do so in his submissions before us. However I do not think that this advances the argument. The effect of those provisions was not to place a blanket obligation on Canada Life, as respondent, to prove the absence of discrimination in every act of every employee that formed part of the chain of causation leading to the act complained of. On the contrary, the starting-point is that the Claimant was required to prove a prima facie case (in the sense explained in Madarassy) that the termination of her contract was discriminatory. Whether she reached that stage had to be decided by reference to the specific case which she advanced. As we have seen (see para. 19 (2) above) the Tribunal did in fact hold that Mr Gilmour's conduct could, if unexplained, justify a conclusion that his decision to terminate her contract was motivated by her age; and accordingly the burden shifted to Canada Life to prove the absence of such a motivation. But, again, that was only in relation to the specific case on the basis of which the burden had been held to shift, and not in relation to some wholly different case which had not been advanced. To put it another way, the burden of proof provisions apply for the resolution of the factual issues raised before the Tribunal: they cannot operate to extend those issues.
52. For those reasons I would hold that the ET made no error in considering only the motivation of Mr Gilmour and that the EAT was wrong to allow the Claimant's appeal on that basis.
53. I would not want the Claimant to think that my reasoning involves any implicit criticism of her advisers for not advancing any challenge to the motivation of Mr McMullan or Mr Newcombe. The Bristol presentation, which we have seen, contains no overt indication of any discriminatory motivation on the part of its authors: in so far as it contains criticisms of the Claimant, they relate to apparently objective matters relating to her ways of working. On the face of it, it would have been hard to get a prima facie case of discrimination based on the motivation of its authors off the ground. By contrast, Mr Gilmour's conduct, as summarised at para. 19 of the Reasons, afforded obvious material on the basis of which the Tribunal could be asked to draw an inference of discrimination, and Mr Bowers was able to make a number of powerful points about it in his closing submissions, which were indeed sufficient to satisfy the Tribunal that the burden of proof should shift to Canada Life. I am not surprised that it was not thought necessary or desirable to advance an alternative case based on the motivation of Mr McMullan or Mr Newcombe.

(B) INABILITY TO CHANGE

54. This is the second of the two issues raised by the Respondent's Notice – that is, the contention that the ET's reasons for rejecting the "age-related stereotype" case were flawed. I have set out the Tribunal's reasons at para. 19 (3) above.
55. Mr Pitt-Payne's essential point is that the ET nowhere examines why Mr Gilmour believed that the Claimant was incapable of change. It found that his belief was "genuine", but that was not inconsistent with it being the product of stereotypical assumptions based on her age.
56. I do not believe that this is a fair criticism. The Tribunal did not in paras. 29-30 of the Reasons confine itself to the question whether Mr Gilmour's belief was genuine. On the contrary, it emphasised that his belief was derived from his personal knowledge and judgment of the Claimant based on what he knew about her circumstances, including what he understood to be her responsibility for her care of sister. Mr Pitt-Payne contends that there was no reasonable basis for Mr Gilmour's judgment, since he had never asked the Claimant to change her ways of working. But to say that his judgment was unreasonable is not to say that it was age-related, and the Tribunal was entitled to find as a matter of fact that it was not.

(C) GROUNDS (3) AND (4)

57. My conclusion under the previous heads is sufficient for the determination of the appeal, and I need not deal with the other two grounds identified at para. 29 above. I will nevertheless do so, albeit very briefly.
58. As regards ground (3), it will be apparent from what I say at para. 51 above that I do not believe that the Tribunal's conclusion that a prima facie case had been shown as regards Mr Gilmour's motivation meant that the burden of proof had shifted as regards the motivation of Mr McMullan or Mr Newcombe. The fact that there was a prima facie case that Mr Gilmour was influenced by the Claimant's age cannot in itself mean that there was a prima facie case that anyone else was.
59. As for ground (4), if the case had had to be remitted, I would respectfully differ from Singh J (see para. 28 above) as to whether the remittal would have had to be to a fresh tribunal. As to his first reason, the fact that the Tribunal had, in his phrase, "fallen into fundamental error" does not seem to me be, without more, a reason why it should not be able to reconsider the case on the basis of the law as established on appeal. Errors – even "fundamental errors" – come in all shapes and sizes. Some do indeed reflect on the way in which the tribunal had approached its task first time round in such a way that it would be unfair to expect the appellant to have confidence in its approach on a remission; but others do not. Even if, contrary to my view, the Tribunal erred in confining its focus to Mr Gilmour, that was evidently not the result of any carelessness or incompetence but because it venially misunderstood the scope of the relevant enquiry, counsel not having pointed it in the right direction. As to Singh J's second reason, I can for my part see nothing in the Tribunal's approach or reasoning that justifies a suspicion that if it was required to undertake the task of considering the motivation of Mr McMullan and Mr Newcombe, which is quite distinct from that of Mr Gilmour, it would approach that task with even a subconscious tendency to arrive at the same result. Its original reasons are balanced in their approach and reasoning and demonstrate an impartial approach. Due weight must always be given to what Burton J. in Sinclair Roche & Temperley calls tribunal professionalism (see para. 46). There would plainly, despite the passage of time, have been real advantages in terms of both economy and consistency in remittal to the same tribunal, and I can see no sufficient case for not taking that course in this case if remittal had been necessary.  

DISPOSAL

60. I would allow the appeal, with the result, if My Lords agree, that the decision of the Employment Tribunal dismissing the claim is restored.

Lord Justice Jackson:

61. I agree.

Lord Justice Longmore:

62. I also agree.

Note 1    Mr Pitt-Payne’s skeleton argument contains a statement in emphatic terms that the Claimant “does not accept that she was her sister’s carer” or that there was any reason for anyone at Canada Life to believe that she was – “Dr. Reynolds was not responsible for her sister’s personal care, and nor was anyone else”. In submissions following the circulation of this judgment in draft he has conveyed the Claimant’s concern that what she says is an inaccurate statement should be put into the public domain. But the ET made a clear finding to the effect that I have stated (see para. 9.8 of the Reasons), and that finding is material to the issues before us. It is not possible on this appeal to go behind it unless it could be said that there was no evidence on the basis of which the Tribunal could made the finding that it did; and Mr Pitt-Payne did not seek in his oral submissions to demonstrate that that was the case. I am happy, however, to put the Claimant’s position about this on the record.     [Back]

Note 2    This is different from the position under the Employment Rights Act 1996, and more particularly under Part IVA, which contains the provisions relating to discrimination against whistleblowers. This was pointed out, and was indeed crucial to the decision on one of the issues, in Fecitt v NHS Manchester [2011] EWCA Civ 1190, [2012] ICR 372: see esp. per Elias LJ, at para. 33 (p. 381). Mr Tatton-Brown sought to place some reliance on Fecitt but for that reason it is of no assistance.     [Back]

Note 3    I should record that the spectre of “near-endless regression” of this kind was in fact raised initially in Mr Tatton-Brown’s skeleton argument, in connection with what were said to be the implications of Singh J’s reasoning. But it was invoked by Mr Pitt-Payne in oral submissions for this rather different purpose.     [Back]

Note 4    I am of course only referring here to cases of the second kind identified at para. 11 above.    [Back]

Note 5    Y’s act might also require to be formally pleaded –Chapman v Simon [1994] IRLR 124 – but, again, the Tribunal has ample powers to permit amendment where justice requires.    [Back]