Unconscious or subconscious
Labour & European Law Review Weekly Issue 483 17 August 2016
Direct sex discrimination occurs when an employer treats a woman less favourably than a man because of her sex (or vice versa). In Geller and Geller v Yeshurun Hebrew Congregation, the Employment Appeal Tribunal (EAT) held that tribunals must bear in mind that employers can directly discriminate against someone because of their sex unconsciously or subconsciously, as well as consciously.
In September 2011, Mr Geller started working for Yeshurun Hebrew Congregation (YHC). Just over a year later, his wife started working for them on an ad hoc basis. A few months later, YHC suggested paying the couple a joint salary which they accepted, although the Gellers were simultaneously chasing YHC for payment for work that Mrs Geller had done for them.
At a board meeting in early July 2013, it was decided that Mr Geller would be made redundant because of a change in the synagogue’s finances, but before he was officially told, Mr Geller informed his employer that his wife was pregnant. On 23 July, YHC told Mr Geller that he had been provisionally selected for redundancy. Mrs Geller took the view that, as an employee, she should be considered for redundancy as well.
On 26 July, the Gellers lodged a number of claims including direct sex discrimination on two grounds – that YHC had failed to acknowledge Mrs Geller as an employee and because it had failed to pay her properly. During September 2013 YHC agreed to pay Mrs Geller in accordance with the timesheets that she had submitted and accepted that she was an employee so should be included in the redundancy selection exercise. The Gellers were both made redundant towards the end of 2013.
The tribunal found that YHC had not treated Mrs Geller less favourably because of her sex but rather because it genuinely believed that she worked for them on an ad hoc basis supplying timesheets for an unspecified number of hours.
Nor had it discriminated against her by failing to pay her. Instead, the reason for the non-payment was because of an administrative oversight linked to the illness of the treasurer who was in hospital and needed an operation. As YHC was a small organization and the treasurer was a volunteer, as were the other members of the board, it decided that a man working on a timesheet basis would have been treated in a similar way and Mrs Geller had not therefore suffered direct sex discrimination on this ground either.
The EAT concluded that the tribunal had misdirected itself as it had overlooked the important point that discrimination can be either conscious or subconscious. In the EAT’s opinion the tribunal was wrong to accept the employer’s belief that they had not acted in a discriminatory manner without also considering whether YHC was affected by an unconscious or subconscious bias not least because it had already found that the issue of gender was “not irrelevant”.
The EAT also concluded that the tribunal had failed to go through the two-stage burden of proof test in section 136 of the Equality Act 2010 which states that “If there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision concerned, the court must hold that the contravention occurred”. The EAT found that the tribunal’s treatment of the burden of proof in this case was rudimentary as 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 for re-consideration to save time and costs.