Discrimination claims and the need to consider subconscious discrimination

A recent case demonstrates the fact that the Employment Tribunals need to specifically consider the subconscious motives in determining if a claimant has been the victim of unlawful discrimination.

It is a situation that many people may find themselves in. The employer tells them that they are being made redundant, or not getting a particular job, or a pay rise and points to an apparently legitimate reason for the decision, but the facts don't appear to justify the decision, or the employee is the only one in the group that is pregnant, or of a different ethnic background, or a different gender from the others in the group. 

So, in order for an Employment Tribunal to ascertain if the employee was a victim of discrimination should it consider the apparent motives only, or delve further and consider the subconscious motives of the employer? Is a failure to consider the subconscious motives an error by an Employment Tribunal in dealing with a discrimination case?

The Employment Appeals Tribunal (EAT) considered these issues in the case of Geller v Yeshurun Hebrew Congregation. 

The case concerned a married couple, who were paid a joint salary, and were made redundant. Mrs Geller brought claims alleging, among other, direct sex discrimination. The Employment Tribunal hearing the case in the first instance found that Mrs Geller had not been treated less favourably because of her sex. Mrs Geller appealed against that decision to the EAT. The EAT overturned the decision of the Employment Tribunal. Among the reasons it gave were:-

1. Despite facts from which discrimination could be inferred, the Employment Tribunal then failed to consider conscious or subconscious discrimination' and 

2. It noted that only if the discrimination is inherent in the act complained of is the Employment Tribunal then released from the obligation to inquire further into the thought process of the alleged discriminator. 

The case illustrates the fact that unlawful discrimination is often the consequence of subconscious prejudice, and that the Employment Tribunal should consider this carefully in reaching a decision of a case involving an allegation of unlawful discrimination. 

From the perspective of businesses this case highlights the fact that policies and procedures, and the implementation of them by managers should be scrutinised carefully to ensure that that subconscious unlawful discrimination has not taken place.

If you need any further help or advice on issues raised by this article do not hesitate to contact us at Hallett Employment Law Services Ltd.