Geller v Yeshurun Hebrew Congregation
The Employment Appeal Tribunal (EAT) held in this case that there can sometimes be subconscious or unconscious discrimination.
A husband and wife worked for a joint salary and were made redundant. Mrs Geller brought claims including direct sex discrimination. The factual matrix was far from gender neutral, however an employment tribunal found that Mrs Geller had not been treated less favourably because of her sex.
The EAT overturned the decision because, despite facts from which discrimination could be inferred, the tribunal failed to consider subconscious or unconscious discrimination. Only if discrimination is inherent in the act complained of, is the tribunal released from the obligation to enquire into the mental processes of the alleged discriminator. In the circumstances, the EAT said the decision could not stand and the case was remitted to the tribunal, to consider whether there was subconscious or unconscious discrimination.
In Practice
"This case is a reminder to employers that, just because there is no hard evidence that discrimination has taken place, it does not mean there cannot be a successful claim. It is actually not very common that it is blatantly clear, from evidence, that there has been discrimination," says Head of Employment Paul Burton. "We do not see emails or letters that say, for example “I am dismissing you as you are getting old” or “I cannot employ a woman into this job”. Discrimination is often a subconscious act and a tribunal will be minded to look for this when a case comes before them."
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.
Comments