Can an tribunal draw inferences, on the basis of its experience that certain 'stereotypical assumptions' are often held about women, without the Respondent's witnesses being questioned about having proceeded on the basis of such stereotypical assumptions?
No, held the EAT in Commerzbank AG v Rajput.
The Respondent's decision maker had based a decision on the Claimant being 'divisive'. The tribunal concluded that this involved making stereotypical assumptions about the Claimant that were gender related. The case had not been pursued or presented on this basis.
The EAT held that, in a case involving stereotypical assumptions, fairness requires that the case needs to be put to the relevant witnesses. The Respondent must have the opportuity to respond to the suggestion that they had been significantly influenced by stereotypical assumptions.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.