Discrimination: The ‘Innocent’ Discriminator

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In Metropolitan Police v Denby the EAT held that if a decision maker is influenced by another person in a discriminatory way then that person can be considered a joint decision-maker.

In this case, the claimant was a male police officer. The Claimant led a group within the police force and the Deputy Assistant Commissioner (DAC) was concerned that there was a lack of gender diversity in the group. The DAC treated the members of the group differently and less favourably to those in a group led by a female officer. It was found in the employment tribunal that the DAC had influenced another officer and convinced them to subject the Claimant to a criminal investigation. The EAT agreed that the finding was correct and that the other officer was not an ‘innocent’ party (see CLFIS v Reynolds) because he was completely aware of the discriminatory context.

On the sixth day of the hearing an amendment was permitted when the identity of the decision maker had been thrown into doubt by witness evidence. Another potential discriminator was added. The EAT stated that the CLFIS principle shouldn’t be a means of escaping any liability where decision making was not clear. When it is difficult, with good reason, to clearly identify the person responsible for the discrimination then an amendment can sometimes be allowed during the course of the hearing. In this instance it did not cause any unfairness on the facts of the case.

Written by

Edward Aston
23rd November 2017