The Subconscious Discrimination Pitfall
The Employment Appeal Tribunal has confirmed that employers can discriminate subconsciously, even where the reason for the treatment appears, at first glance, to be unrelated to the relevant protected characteristic.
The Facts
In Geller v Yeshurun Hebrew Congregation, Mr and Mrs Geller were a married couple who worked for Yeshurun Hebrew Congregation (Yeshurun). There was some initial confusion over Mrs Geller's employment status. After some time, and in the context of Mrs Geller chasing for payment for work rendered, Yeshurun decided to pay Mr and Mrs Geller a joint salary.
Mr Geller was then selected for redundancy. Mrs Geller, considering herself also to be employed by Yeshurun, said that she should also be involved in the redundancy process. She commenced tribunal proceedings for sex discrimination, equal pay, unfair dismissal and unlawful deduction from wages.
Yeshurun agreed to pay Mrs Geller in accordance with her timesheets and accepted her as an employee for the purposes of the redundancy procedure. Shortly thereafter, Mr and Mrs Geller were made redundant.
The Tribunal's Decision
The Employment Tribunal (ET) held that Yeshurun had not treated Mrs Geller less favourably in failing to acknowledge her an as employee, but even if it had, the reason for the less favourable treatment was not because of her sex.
The ET also concluded that the delay in payment was due to illness and hospitalisation of the colleague responsible for paying Mrs Geller. The ET concluded that a man working on a timesheet basis would have been treated in the same way and that the treatment of Mrs Geller was not due to her sex.
Based on this reasoning, the ET dismissed Mrs Geller's claim for sex discrimination and Mrs Geller appealed.
The EAT's Decision
The EAT held that the ET had overlooked the possibility of subconscious or unconscious discrimination. If discrimination is inherent in the act complained of, there is no need to enquire further into the mental process, conscious or unconscious, of the alleged discriminator.
However, where discrimination is not inherent in the act complained of, it is necessary to address the possibility that an act could be discriminatory due to the discriminator's subconscious motivation. This possibility should have been expressly excluded by the ET before reaching its decision.
The EAT has remitted the case back to the ET for reconsideration.
Best Practice
Employers might be understandably concerned to learn of the potential liability for subconscious discrimination. In order to effectively manage this risk, it is sensible to maintain a clear paper trial explaining difficult decisions and seeking to demonstrate the non-discriminatory reasons behind them.