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Mind Games – Is it possible to “subconsciously discriminate”?

More often than not, when dealing with discrimination claims there is some form of obvious discriminatory conduct that is complained of, which is linked to a protected characteristic (such as sex or race). It speaks for itself and the case is decided on its merits.

What happens where somebody genuinely does not believe that a protected characteristic has influenced the way that they have acted? What if the employer has a preconception that they are not even aware of which affects how they behave?

Geller v Yeshurun Hebrew Congregation

Mr Geller began employment with Yeshurun in 2011. Around a year later he married Mrs Geller and shortly afterwards she started working for Yeshurun. At the time, she was not considered to be an employee, but working on an ad-hoc basis, submitting time sheets for work done. It was then agreed that Mr and Mrs Geller would work for a joint salary of £12,500. At that stage, Mrs Geller had not been paid for the work that she had done up to that time and she was chasing for payment.

Around that time, the person with authority to sign off payment to Mrs Geller had become ill and needed hospital treatment. Mrs Geller then became pregnant and Mr Geller was informed that he was being provisionally selected for redundancy. Mrs Geller said that she considered herself to be an employee and that she should also be involved in any redundancy exercise. Both Mr and Mrs Geller were ultimately made redundant

Mrs Geller brought a claim for sex discrimination, arguing that both the deductions and not treating her as an employee were both because of her sex.  She also brought equal pay, unfair dismissal and unlawful deduction from wages claims. In terms of the sex discrimination claim, the issues to be decided were whether Yeshurun treated Mrs Geller less favourably than others by (1) failing to acknowledge her as an employee and (2) making deductions from her wages, and whether the reason for this treatment was because of the claimant’s sex.

Employment Tribunal

The Employment Tribunal (ET) dismissed Mrs Geller’s sex discrimination claim. It found that Yeshurun had considered her to be working on a self-employed, ad-hoc and temporary basis until she said that she considered herself to be an employee.

It noted that she was in fact treated more favourably initially because she was married to Mr Geller. Her position was not advertised; she was not interviewed and she started working for Yeshurun because of her relationship with Mr Geller. The ET accepted the evidence of Yeshurun’s witnesses and said that they failed to acknowledge her as an employee because they genuinely believed that she was self-employed, submitting time sheets for work done. It was unrelated to her sex.

In relation to the deductions from wages, it found that she was not paid because the relevant person was ill. Yeshurun is a small organisation; it is a charity and members of the Board are volunteers. She was not paid because of an administrative oversight linked to that illness; it was nothing to do with her gender or pregnancy.

Mrs Geller appealed and argued (amongst other things) that the ET made an error by relying upon the genuine belief of Yeshurun’s witnesses. It failed to take account of the possibility of unconscious or subconscious discrimination. For example, she argued that her treatment may have been influenced by stereotypical assumptions based on gender, i.e. that women are not breadwinners, and that the ET’s finding that she was treated more favourably due to being the wife of Mr Geller showed that the factual context in this case was not gender neutral.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) allowed the appeal and remitted the matter to the ET to reconsider the issues in relation to sex discrimination.

The Judge recognised that in some cases of alleged direct discrimination, the discrimination is inherent in the act complained of.  In those cases there is no need to enquire further into the mental process of the alleged discriminator (i.e. whether there was any conscious or unconscious discrimination). In other cases, the discrimination is not so obvious but may be discriminatory by reason of the motivation, conscious or unconscious, of the alleged discriminator.

In this case, the belated recognition of Mrs Geller as an employee and the withholding of her wages until a late stage does not by its nature strike at the protected characteristic of her sex; it did not by its nature target the fact that she was a woman and not a man.

In this case the EAT found that the ET did not consider the risk of subconscious discrimination despite this being a case in which it was necessary to do so. There were facts from which an inference of discrimination could be drawn. The work environment was not gender neutral. The joint salary showed that Mr and Mrs Geller were regarded as a husband and wife team and there was frequent reference to her being the wife of Mr Geller, which the ET found had influenced the treatment towards her (albeit in a positive way in that it meant she was treated more favourably).

Comment

Some cases require an ET to look at an employer’s subconscious mental processes and consider whether a claimant’s protected characteristic played a part in any treatment. If someone’s actions viewed as a whole make it possible for the ET to conclude that subconscious discrimination has occurred, the burden of proof shifts to the employer to prove that there has been no discrimination. It is important that employers realise that all their actions, words and the treatment of any employee as a whole can be scrutinised on this basis.

Employers should also bear in mind that acts done by an employee in the course of their employment can be treated as having been done by the employer, irrespective of whether the employer knew about the act.  Employers can escape liability in these circumstances if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description. Reasonable steps include things such as having decent equal opportunities and anti-bullying and harassment policies, training staff on those policies and their wider obligations, and taking steps to deal with complaints adequately.

If you have any queries relating to discrimination and equal opportunities (including training which we can offer to managers and staff)  or if you have any other employment law or HR query please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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