Subconscious sex discrimination
Unconscious or subconscious
Case Geller and Geller v Yeshurun Hebrew Congregation (2016) Morning Star, August 19, EAT
Facts G was employed by YHC in 2011. A year later his wife started working for YHC on an ad hoc basis. YHC later suggested that the couple should be paid a joint salary. This was accepted.
In 2013 it was decided that G would be made redundant. Before he was informed of this, he told his employer that his wife was pregnant. Mrs G stated that she should also be considered for redundancy. Both were made redundant at the end of 2013. They lodged a number of claims in the employment tribunal including sex discrimination in that YHC had failed to treat Mrs G as an employee and had failed to pay her properly. The claims were dismissed on the basis that YHC had not treated Mrs G less favourably because of her sex but because it genuinely believed that she worked for them on an ad hoc basis. Mrs G appealed to the EAT.
Decision 1. The matter was referred back to the tribunal for reconsideration.
The tribunal had overlooked the important point that discrimination can be conscious or subconscious.
The tribunal had failed to go through the two-stage burden of proof test in section 136 of the Equality Act 2010. Its treatment of the test had been rudimentary. There were primary facts from which discrimination could be inferred. At that stage the burden of proof would have shifted and it would have been for the employer to demonstrate a non-discriminatory reason for treatment.