The Equality Act 2010 states that it is against the law to discriminate against an employee on the grounds of their race, sex, age, marital status, religion, sexual orientation, disability, age or pregnancy (protected characteristics).
The discriminatory act is straightforward to establish where there is an obvious or direct act of discrimination however what is not so clear is the approach to take in the event that no direct intent can be established.
It has long been accepted that proof of intent is not required to prove an unlawful act of discrimination. However the application of these rules has proven to be problematic in practice. This issue again arose in the recent case of Geller v Yeshurun v Hebrew Congregation in which the Employment Tribunal failed to explore the possibility of subconscious discrimination despite, on the facts, there being good cause to do so.
Mr and Mrs Geller both worked for the Yeshurun Company. Mr Gellar was an employee and Mrs Gellar worked on an ad hoc basis for which she submitted time sheets. In 2013 the couple began to receive a joint salary. Mrs Gellar was not paid for the work that she had done previously.
Mr Gellar was provisionally selected for redundancy and Mrs Gellar argued that she too should have been involved in this process as an employee. They were subsequently both made redundant. Mrs Gellar brought a claim for sex discrimination on the basis that both the unlawful deduction of wages and the fact that the company had failed to recognise her as an employee were both acts of discrimination which related to her sex.
The Employment Tribunal
The Employment Tribunal dismissed the claim. They found no evidence that she had been treated unfavourably on either ground commenting that she had actually been treated more favourably as a result of being married to Mr Gellar and that the deductions of wages were as a result of an administrative oversight not as a result of her sex.
The Employment Appeal Tribunal allowed the appeal on the basis that the tribunal had failed to consider the possibility of subconscious or unconscious discrimination despite this being a case in which it was necessary to do so. There were facts from which an inference of discrimination could be drawn given that their working environment was not gender neutral.
The tribunal did not consider the two stage test which dictated the evidential steps required to establish an act of subconscious discrimination and relied to heavily on the witness evidence of the Respondent’s employees. The two stage test dictates that (1) Where there are facts where an inference of discrimination can be drawn (2) the burden of proof is reversed and it is for the alleged discriminator to show that there was a cogent reason for their actions. If they fail to do so then discrimination will be inferred.
It was held that the decision could not stand and the case was remitted to the employment tribunal for further consideration. In this case emphasis was placed upon whether the Company had engaged in stereotypical assumptions based on gender.
This should serve as a stark reminder to all employers that even a preconception upon which you are unaware could relate to discriminatory conduct. A reasonable response might be to say “how can I guard against something I am unaware of?”. The answer is constantly to question yourself and, in particular, to ask whether there is a risk of relevant preconceptions existing about which you would otherwise have been unaware. A good way of achieving this is to ask an adviser to undertake an objective assessment to identify any potential problems you may have overlooked.
We will be pleased to undertake any assessment work you think might be appropriate. Give the decision in this case, it is well worth considering.
For further information and to book a no obligation appointment, please contact Susan Stafford on 0151 239 1009 or firstname.lastname@example.org.