Masking discrimination

The Employment Appeal Tribunal (EAT) has held in The Commissioner of Police of the Metropolis v Denby that employers should not be allowed to escape liability for making discriminatory decisions by trying to mask the true identity of the decision maker. Instead all the joint decision makers should be held liable, once their identities are known.

Basic facts

Mr Denby was the police officer in charge of a Territorial Support Group which was known for its lack of gender diversity. After complaints were made that officers were claiming for overtime not worked, members of the Professional Standards Department made an unannounced visit which resulted in four disciplinary 163 notices being served which placed certain restrictions on the duties those officers could carry out.

When the Deputy Assistant Commissioner (DAC) paid a surprise visit a few weeks later, she encountered a male officer coming from the shower wearing only a towel. After she relayed this information to another officer, Commander Musker, Mr Denby was served with a 163 notice with regard to the overtime claims. Many months later, the restrictions on his duties were lifted only to be reinstated a few days later. Although Commander Muster had made the decision “on paper” Mr Denby was told by another officer that “others were influencing the decision”. The investigation into his alleged wrongdoing ultimately concluded that he had committed misconduct but that it would be dealt with informally.

Mr Denby claimed sex discrimination on the ground that another (female) officer was not served with a 163 notice when it was discovered that she knew that overtime was being claimed that had not been worked. Indeed, she was later promoted whereas he was ruled out for promotion.

Tribunal decision

Noting that the DAC could not explain why the decision to serve the 163 notice on Mr Denby was made several weeks after the initial visit from Professional Standards officers although there was no additional evidence against him, the tribunal held that the officer who had served the notice – DCI Sumner - had been “influenced” by the views of the DAC and Commander Musker.

Although DCI Sumner clearly took part in the decision, the influence that the other two exerted over him was not gender neutral. Instead, it occurred in the setting of a culture that was perceived as hostile to women. Mr Denby had therefore been subject to sex discrimination by the Met when he was placed under investigation for potential misconduct.

The Met appealed arguing that the tribunal had failed to apply the principle in CLFIS (UK) Ltd v Reynolds (LELR 424) properly. This decision by the Court of Appeal held that an employer cannot be held liable for acts carried out by individual employees if they were not motivated by discrimination, even if they relied on information from other employees who were motivated by discrimination.

EAT decision

The EAT dismissed the appeal, holding that in this case the DAC (who wanted to deal with the male culture in the unit) had influenced the decision made by another officer as to whether Mr Denby should be subject to a 163 notice or not. Crucially that other officer, DCI Sumner, was aware of the context in which the discriminatory decision had been made to serve the notice, unlike the circumstances in CLFIS.

With regard to that decision, the EAT held that it should not be allowed to become a way for employers to escape liability by deliberately opaque decision making which serves to mask the identity of the true discriminator. Instead all the joint decision makers should be held liable, once their identities are known.