Can an employer directly discriminate subconsciously against an employee? Yes, say the EAT in Geller & Geller v Yeshurun Hebrew Congregation.
Originally only Mr Geller had been employed by the respondent. Subsequently he had married Mrs Geller and in mid-January 2013 she began providing ad hoc services to the respondent on a self-employed basis. The issue of whether both Mr & Mrs Geller should be employees was raised in May 2013 and the respondent considered that issue. At that stage Mrs Geller had not been paid for the work she had done and was chasing for payment. In early July 2013 Mrs Geller became pregnant and told the respondent.
Later in July Mr Geller was told he was at risk of redundancy and Mrs Geller said she should also be involved in any redundancy, on the basis that she was an employee. She commenced tribunal proceedings in July 2013 alleging sex discrimination, equal pay, unfair dismissal and unlawful deductions.
In September, the respondent accepted that Mrs Geller was an employee and she and Mr Geller were made redundant.
The tribunal concluded that Mrs Geller was self-employed because of the ad hoc nature of work and the fact that she submitted timesheets. They relied upon the evidence of a witness whom they described as an “honest man”.
On the question of whether the non-payment of wages to Mrs Geller was direct sex discrimination, it was found that an instruction was given that Mrs Geller should be paid but this did not happen because the Treasurer was in hospital. The tribunal thought it likely a man would have been treated in a similar fashion. It also found that any less favourable treatment was not on the grounds of Mrs Geller’s sex, but because of the circumstances.
Mrs Geller appealed to the EAT which noted that direct discrimination may either be inherent from the nature of the act itself, or that an act may also be discriminatory by virtue of the conscious or subconscious motivation of the discriminator and that in neither case is a benign motive relevant.
The EAT concluded that the tribunal had misdirected itself and overlooked the important point that discrimination can be either conscious or subconscious. In the EAT’s opinion the tribunal was wrong to accept the witness’ belief that they had not acted in a discriminatory manner without also considering whether they were affected by a subconscious bias.
They also concluded that there were primary facts from which discrimination could be inferred. This was important because at that stage the burden of proof would have shifted and it would have been for the employer to demonstrate a non-discriminatory reason for treatment.
The EAT referred the matter back to the same tribunal to consider whether Mrs Geller had been subjected to direct sex discrimination.
It is not sufficient for an employer to honestly and genuinely believe that they have not directly discriminated against an employee. Their actions can be viewed as a whole and it is possible for a tribunal to conclude, based on the totality of the evidence, that subconscious acts of discrimination have occurred. At that point the burden of proof shifts to the employer to demonstrate that there has been no discriminatory behaviour.
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