Hello and welcome back to your weekly case law update. Last week we looked at an EU case concerning discrimination against breastfeeding mothers. This week we will again be looking at discrimination, sex discrimination this time, together with conduct investigations.
The questions this week are:
Can a person who influences a decision maker be considered a joint-decision maker?
If the influencer had discriminatory intention but the decision maker did not, is the decision discriminatory?
The Commissioner of Police of the Metropolis v Denby
Mr Denby, the Claimant, was a Chief Inspector in the Metropolitan Police, the Respondent. He was a distinguished officer who had been seconded to Afghanistan to set up a police force there. He was head of a unit that was predominantly male and not very diverse. Women were particularly underrepresented.
In general, the Respondent had a reputation for a male dominated, macho culture. The Respondent had appointed a new Assistant Commissioner to address this issue of diversity and discrimination. The new Assistant Commissioner made a surprise visit to the Claimant’s place of work and observed a male officer walking across the office in a towel.
The Claimant alleged this was because the officers had to do so to reach the locker room which was not connected to the shower. The Respondent was not happy with the incident or the Claimant’s reasoning. The Claimant was placed under investigation and found to have allowed overtime to be paid when it hadn’t been worked. There was also evidence to suggest some sort of bar/off license was being run.
The Claimant was investigated for criminal/gross misconduct, he was removed from command and placed on restricted duties. During this time, a team led by a female officer of the same rank as the Claimant was also found to have made payments made for overtime that had not been worked. The officer leading this team was not put at risk of gross misconduct/criminal proceedings and the matter was handled informally.
The Claimant also alleged that the Assistant Commissioner blocked his return to duty by influencing the decision maker after other senior colleagues had requested he return. He was also passed over for promotion and the investigation eventually resulted in informal action and no right of appeal.
The Claimant initiated a sex discrimination claim on the grounds that he was treated less favourably in comparison to his female colleague. He alleged the reason for this was because he was male. The ET held that the treatment was discriminatory. The Respondent appealed citing that the decision maker who did not lift the suspension was innocent and not discriminatory.
The EAT rejected the appeal. It held that if a Respondent is not transparent with its reasons for making sanctions and that a person innocently commits a discriminatory act after being influenced by a discriminator, that still means the decision was discriminatory.
The takeaway point:
Yes, if a decision maker is influenced by a discriminating third party – in this case a senior colleague with a goal to tackle gender underrepresentation – then that means the decision can be discriminatory.
In this case it was also held that if it is not initially obvious who the discriminator was, the Claimant can amend their claim once they find out who the discriminating individual is. This means the Claimant can sue them individually as well as the employer, who is vicariously liable.
This case, despite complex points about influencers and adding parties to claims mid-hearing, is another example of always treating people equally when deciding disciplinary sanctions for similar offences.