The 'innocent' discriminator

If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker?

Recently, the Employment Appeal Tribunal in Metropolitan Police v Denby held that, yes, they could be.

The Claimant in this case was a male police officer, Adrian Denby. The Deputy Assistant Commissioner Maxine De Brunner had been given the role of driving out discrimination in the Met following concerns about a lack of gender diversity in a group led by Mr Denby.

She responded in a heavy-handed manner to complaints about members of the group claiming for overtime not worked. However, when similar complaints were made about a group led by a female officer, she allowed them to be investigated locally.

The Employment Tribunal found that the Deputy Assistant Commissioner had influenced the decision by another officer to subject the Claimant to a criminal investigation.

Discriminatory context

The Employment Appeal Tribunal agreed that this was a finding which it was entitled to make, and that the other officer was not "innocent", because he was fully aware of the discriminatory context. Although this context had not been put to him in cross-examination, it was sufficient that he had been questioned about the influence on him.

It is reported that, nationally, just seven male police officers have won sex discrimination cases out of 62 claims over the last five years.

Kate Fretten, Partner in our Employment Team says “This case is a warning to managers and HR specialists that they have to be careful there is no evidence of outside influences that could taint a decision with discrimination. If there is some outside influence the decision-maker will have to show that this in no way affected their decision in a discriminatory way.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.