In CLFIS (UK) Ltd v Reynolds, Reynolds (R) was a chief medical officer whose consultancy agreement was terminated when she was aged 73. The decision was taken by the General Manager, Gilmour (G) following a presentation by two other managers who outlined problems with R’s performance, but did not recommend dispensing with her services. Given his own knowledge of R combined with the facts emerging from the presentation, G formed the view that R could not help take the business forward in respect of communications, training and increasing market share.

An ET rejected R’s age discrimination claim. It found that G alone took the decision based upon his own knowledge of R's work and personal circumstances, gained over many years, and it was for a non-discriminatory reason, i.e. poor performance and being incapable of change. R appealed on the basis that the ET was wrong to focus solely on G’s mental processes and should not have disregarded the other managers’ involvement leading up to the decision.

The EAT ruled that a tribunal must assess the mental processes of others whose views had a significant influence on the eventual decision to terminate, so as to determine whether the employer could prove that the decision was in no sense whatsoever because of age.  In this case the views of others did play a part in the decision, but the tribunal failed to examine the mental processes of those people to see if they were based on the prohibited characteristic of age. Therefore, the case would be remitted to a different tribunal. Canada Life appealed arguing that the ET was right in law to focus exclusively on G’s mental processes as he was the sole decision-taker.

The Court Of Appeal restored the ET’s judgment. G reached his decision taking into account information provided by others, but that is not the same as those ‘others’ being parties to the decision. The focus must be on the motivation of the decision maker. Here the ET found that G made the relevant decision on his own, based upon his own knowledge of R's work and personal circumstances, gained over many years. G’s decision was not motivated by age, but because of R’s poor performance and a genuine belief that she was unlikely to change.

If the EAT’s ruling had stood, then it would have significantly widened the burden of proof test in cases brought solely against employers in similar circumstances. However, it should be noted that if another employee does supply discriminatory information related to the situation, that, in itself could form the basis for an entirely separate claim.

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