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Subconscious Direct Discrimination

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Thanks to Karen Jackson of didlaw for preparing this case summary

Is failing to address, or make a finding, in relation to subconscious or unconscious discrimination an error of law?

Sometimes, held the EAT in Geller v Yeshurun Hebrew Congregation.

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:

(1) 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; and;

(2) Whilst there is no requirement to apply the two-stage test in the burden of proof provisions (section 136 Equality Act 2010) in a mechanistic or formulaic way or even at all, the tribunal's treatment of the reverse burden provisions in the case was rudimentary at best.

The decision could not stand and was remitted.