Although tribunals can draw on the experience of panel members when coming to a decision about a case, the Employment Appeal Tribunal (EAT) held in Commerzbank AG v Rajput that they cannot independently decide that a claim has emanated from stereotypical assumptions without prior notice having been given to the parties and witnesses, as that is a type of specialist knowledge which has to be disclosed in advance.
Ms Rajput, a senior compliance advisor who had informally been designated as deputy head, applied for the role of head of market compliance along with two other internal candidates (one male and one female).
At around the same time her male colleague, who was also her junior, was appointed as acting deputy head. This was justified on the basis that the toxic atmosphere in the team would have been made worse by the “divisive” personalities of the two women, whereas the man “seemed the most innocuous”. Two days after Ms Rajput announced that she was pregnant, an external candidate (Mr Dyos) was offered the job.
After her waters broke at work, Ms Rajput went to hospital but returned for a short time to finish what she had been doing before going on leave, which Mr Dyos described as indicative of her “controlling” personality. A week after having her baby, she asked to join a work meeting by remote access but was not dialled in on the basis that this behaviour reflected an “unhealthy obsession with work”.
When she returned to work, she discovered that her male colleague had been designated deputy head of market compliance during her absence and that the managerial aspect of her role had been given to her maternity replacement. She brought a number of claims, including direct sex discrimination, harassment and maternity leave discrimination.
The tribunal concluded that Commerzbank had operated on the basis of certain stereotypical assumptions about women. For instance, rather than praising her for her commitment to work, Ms Rajput was talked about in a pejorative manner for returning to work after her waters broke. There was also an assumption that the toxic relations in the office must be the fault of “divisive” women. Likewise, refusing her remote access to the meeting was based on assumptions about what a woman should do on maternity leave and amounted to maternity discrimination.
The bank appealed on the basis that Ms Rajput had not put forward an argument based on stereotypical assumptions. As such, it had not had the chance to challenge this line of reasoning at the hearing which was unfair.
Whilst acknowledging that tribunals can draw on the knowledge of panel members, the EAT held that experience of stereotypical assumptions does not constitute a general category of knowledge that can be applied without first giving notice to the parties.
Instead, it is a type of specialist knowledge which, if it is to be relied on in order to draw inferences about the reasoning of the relevant decision-makers, must be disclosed to the parties, their advisers and witnesses in advance of the hearing so that they can challenge and test them. This was necessary as a matter of basic fairness. It therefore remitted these aspects of the case to a freshly constituted tribunal.