Where Does Discrimination Liability Lie Where the Decision-Maker Is Influenced by Others?

In Commissioner of Police of the Metropolis v Denby (UKEAT/0314/16), the Employment Appeal Tribunal (EAT) considered where liability for discrimination sits where a decision-maker is influenced by others.

Mr Denby was a Chief Inspector in the Metropolitan Police Service (MPS). He was head of a specialised armed unit that was predominately male and lacking in gender diversity. Following allegations of false overtime claims in his unit, Mr Denby was placed under criminal investigation, removed from command and placed on restricted duties. However, when similar allegations arose in another specialised armed unit headed by a female Chief Inspector, that Chief Inspector was only subjected to an informal investigation.

In the Employment Tribunal, Mr Denby was successful in a sex discrimination claim on the grounds that he had been treated less favourably than the female Chief Inspector. The MPS appealed, arguing that the actual decision-maker was innocent and had not acted in a discriminatory way. The EAT rejected the appeal and held that if a decision-maker innocently makes a discriminatory decision, the decision itself will still be discriminatory if that person was influenced by someone motivated by discrimination. Furthermore, the influencer can be regarded as a joint decision-maker. In this case, the EAT found that the decision-maker had been influenced by two senior police officers who had themselves acted in a discriminatory manner and that they were each joint decision-makers.

Employers should ensure that decision-making processes are as clear and transparent as possible. Where there is more than one decision-maker, the employer may be liable for each decision-maker’s decision.