Clfis (UK) Ltd v Dr Mary Reynolds OBE

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Justice Jackson,Lord Justice Longmore
Judgment Date30 April 2015
Neutral Citation[2015] EWCA Civ 439
CourtCourt of Appeal (Civil Division)
Date30 April 2015
Docket NumberCase No: A2/2014/1837

[2015] EWCA Civ 439

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Employment Appeal Tribunal

Mr Justice Singh

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Longmore

Lord Justice Jackson

and

Lord Justice Underhill

Case No: A2/2014/1837

Between:
Clfis (UK) Ltd
Appellant
and
Dr Mary Reynolds OBE
Respondent

Mr Daniel Tatton-Brown (instructed by Bevan Brittan LLP) for the Appellant

Mr Timothy Pitt-Payne QC (instructed by Charles Russell Speechly LLP) for the Respondent

Hearing date: 17 March 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...

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