CLFIS (UK) Ltd V Dr Reynolds [2015] EWCA Civ 439 (Continued...) the Claimant Relied on the Reasoning of the EAT, with the Exception That: 1

Broadway broadway quarterly | Issue 29 | December 2015 House By Jake Ellis specialising in Immigration, Civil, Commercial, Employment and Family Law & Case update: EVIEW R lation u ICIAL CLFIS (UK) Ltd v Dr Reynolds EG R Jud [2015] EWCA Civ 439 The EAT The claimant brought an appeal on three grounds: 1. the ET erred in having regard only to the mental IMMIGRATION LAW IMMIGRATION processes of the GM; 2. having decided the burden of proof had shifted, the ET failed to consider the oral evidence of others who had contributed to the decision to terminate: CIVIL LAW CIVIL Background 3. the ET did not address whether the respondent’s The claimant worked under a alleged belief that the consultancy agreement as Chief claimant was incapable of change, owing to her age. Medical Officer (“CMO”) having Singh J allowed the appeal on previously been an employee ground 1. Although Singh J held the ET’s EMPLOYMENT LAW EMPLOYMENT from 1968 until 1992. decision that the GM was the Following a series of their Bristol office in five years; sole decision maker was presentations, including one by her resistance to engaging unassailable, this did not the Managing Director of the a wider panel of medical determine the matter. Despite division regarding the CMO experts; sluggish turnaround protestations this was contrary service, the General Manager times; and, her limited input to how the case was argued in (“GM”) made the decision in training and development. the ET, Singh J held where to terminate the claimant’s Whilst the claimant was not several parties contribute to the FAMILY LAW FAMILY consultancy agreement. given an opportunity to modify decision the ET should examine Decision of the ET her working practices, the ET all the parties’ motivations. The Newsletter Thefor Broadway House ET Chambers found in favour of accepted the GM’s evidence (continued...) the respondent, choosing that, having worked alongside Contents to focus exclusively on the her for a number of years, she GM’s “mental processes” would not change and would Criminal as the sole decision maker frustrate any attempt to change P4 Proceeds of crime despite acknowledging that current working practices. P7 Has the ‘Rule’ of R v Grant had its day? CRIMINAL LAW CRIMINAL the decision to dismiss was Moreover, as the claimant was P9 Publicity on proof of iniquity broadway quarterlybroadway based upon the contributions a self-employed consultant, P10 Who do we think we are? of others and there was the GM stated there was no Family sufficient evidence to reverse need to provide that opportunity. P6 When is a child not a child? the burden of proof. P8 Watchdog or unwelcome Importantly, throughout visitor? The ET heard the GM’s her evidence, the claimant Employment 2015 evidence, highlighting a indicated no desire to adapt P1 Case update & A Happy New Year! number of factors leading her current working practices. Other to the claimant’s dismissal, P11 New members ...from everyone at P12 Chambers news Broadway House Chambers including her failure to visit [email protected] broadway quarterly | 1 By Jake Ellis specialising in Immigration, Civil, Commercial, Employment and Family Law Case update: CLFIS (UK) Ltd v Dr Reynolds [2015] EWCA Civ 439 (continued...) The claimant relied on the reasoning of the EAT, with the exception that: 1. the GM was not the only decision-maker; 2. the EAT failed to properly consider whether the GM’s belief that the claimant was incapable of change was age related. Giving the lead judgment, Underhill LJ, distinguished between cases of “joint decision” and “tainted information”, stipulating cases of “tainted information” occur where the: “ …act which is Support for this assertion was said Additionally, Singh J, referring to Igen detrimental to a to derive from Nagarajan v London Ltd v Wong [2005] ICR 931, stated Regional Transport [2000] 1 AC 501: where the burden of proof had shifted, claimant is done by as the ET found in this case, it was for an employee who is “…Discrimination the respondents to prove the treatment was “in no sense whatsoever” on innocent of any may be on racial discriminatory grounds. discriminatory grounds even The Court of Appeal motivation but who The respondent appealed on four though it is not grounds: has been influenced the sole ground 1. the ET was right to focus exclusively by information… for the decision on the GM’s mental processes; 2. even if the mental processes of the or views expressed …If racial grounds other parties were relevant this had not by another…whose been argued before the ET; or protected acts 3. even if those parties’ mental motivation is, or is had a significant processes were open to being said to have been, pursued, the ET made their finding influence on the based on the GM’s decision alone; discriminatory”. outcome, 4. if the case was to be remitted it should have been to the same tribunal. Underhill LJ asserted that in these discrimination is cases the tribunal should separate and distinguish between the act of providing made out”. the “tainted information” and the act of making the decision as it would be [email protected] broadway quarterly | 2 View all our newsletters online at | www.broadwayhouse.co.uk/newsletters unjust to render the decision maker’s Further, it was argued the approach As such, the ET was not obliged to act discriminatory “…on the basis of is “over-analytical and would lead consider the other parties’ involvement someone else’s motivation…”. to unnecessary and undesirable nor did the burden of proof require the complexity” and, in cases of “tainted employer to prove a party’s mental The claimant pursued several arguments information”, claimants may be unaware process was innocent where no against this approach. of the perpetrator of the discriminatory complaint had been made about that act until it was too late to “switch…fire”. decision. First, it was argued the “separate acts approach” ignored the reality of the Commentary claimant’s complaint, but Underhill LJ The crucial aspect of Underhill LJ’s dismissed that assertion stating, judgment is the application of the “the analysis must depend on which “separate acts approach” to cases act was in fact discriminatory, not… of “tainted information” and the which most immediately caused the treatment of said information as distinct loss”. to the decision to terminate. The claimant also asserted the “separate What flows from this is the need for acts” approach meant claimants would Although this argument resonated with claimants to precisely plead their claim, be restricted to a claim against the party Underhill LJ, he stressed that usually a identifying both the acts complained supplying the “tainted information”, discrimination case would stand or fall of and the party/ies to whom they are resulting in inadequate compensation for with the person doing the alleged act attributable. their loss. and that “typically [the claimant will] be well aware of the information… However, if this is not possible at the Underhill LJ accepted there was some [on] which the decision maker acted”. outset practitioners should be aware of merit in this argument but in principle he Additionally, it will only be in rare cases Underhill LJ’s guidance that the tribunal “did not regard it as wrong” as where a claimant is unaware of the true have appropriate case management discriminator so “…as to cause a real powers “…to do justice…” provided case management problem” but, in there is “…a good excuse…”. “ [The employer] these circumstances, the “…tribunal’s Its implications for Respondents will no ought not to be powers to extend time are ample… to do justice…” doubt be welcomed as Underhill LJ’s liable for a loss distinction transfers responsibility from Importantly, Underhill LJ accepted the decision maker to the party/ies which did not in where the decision was made jointly supplying the “tainted information”. fact flow from Y’s the tribunal should consider the mental processes of all those involved. Additionally, the tribunal are only discriminatory act, required to hear evidence relating to or which was not However, in this case, the ET’s finding the motivation of the decision makers that the decision to terminate was made with no obligation to comb through the [a] sufficiently direct by the GM alone, was “unassailable” factual matrix of decisions leading to the dismissal. or foreseeable and, in any event, the claimant’s pleaded case was directed at the GM alone. At consequence of it.” no stage had she sought to amend the pleadings to include any other party. [email protected] broadway quarterly | 3 By Ben Smith specialising in Criminal, Employment and Immigration Law Proceeds of Crime -Where are we post- implementation of the Serious Crime Act 2015? • £500,000 (in cash) to be paid immediately; • £200,000 (in shares) to be paid within 28 days; and • £300,000 (in realisable property) to be paid within 3 months. Default sentences Default sentences have also been significantly amended under the new legislation, and in the words of the guidance “simplified”. In reality, Part 1 of the Serious The court can only give an extension they have simply been made longer. of this period where it is satisfied that The new default sentences are less Crime Act 2015 makes a the defendant is unable to comply with complicated in the sense that there are number of amendments an order, but this is limited to where now four tiers of default sentence as to the already draconian assets need to be realised. Even then, opposed to the previous 12. The new the court may now only set the length default sentences are as follows: position in relation to of time for the payment of money due confiscation as set out under an order to a maximum length Amount Maximum Term of 3 months at the confiscation hearing.

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