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18 November 2016

Tribunal needs to consider subconscious motivation for possible discriminatory acts

5 mins

Mrs I Geller, Mr A Geller v Yeshurun Hebrew Congregation UKEAT/0190/15/JOJ; March 23, 2016

EAT finds that ET had erred in failing to consider whether an employer had subconsciously discriminated against the appellant.  The ET’s conclusion that the respondent’s witnesses held a genuine belief that they had not discriminated against the appellant was too subjective.  As the circumstances of this particular matter were not gender neutral, the appropriate course for the tribunal was to make an objective assessment as to whether inferences could be drawn from the facts.


Mrs Geller (IG) began working for Yeshurun Hebrew Congregation (YHC) in January 2013. Her husband, who had started work with YHC in 2011, was considered a regular employee, but IG was not.  IG worked on a timesheet basis for non-fixed hours while Mr Geller worked fixed hours and was not required to provide timesheets.  In July 2013 YHC commenced a redundancy process.  Initially IG was not included as YHC did not consider her to be an employee. 

Following advice, YHC subsequently concluded that IG was an employee and included her within the redundancy process.  

IG lodged a claim of direct sex discrimination claim arguing that YHC had discriminated against her by failing to acknowledge her as an employee from the start of her employment and by making unlawful deductions from her wages. 

Employment Tribunal 

The ET accepted the evidence of YHC’s witnesses who stated that in not acknowledging IG as an employee, they had not done so because of her gender. They genuinely believed that she was an atypical worker because of her ad hoc working and submission of time sheets.  

The ET concluded, broadly on the basis of this genuine belief, that IG had not been treated less favourably because of her sex.  In fact the tribunal found that IG had been treated more favourably than her husband as she had not been required to compete for her role which was awarded by virtue of her relationship with her husband.

Employment Appeal Tribunal

On appeal IG argued that the ET had erred in not investigating the possibility that YHC’s witnesses had been motivated by some unconscious or subconscious stereotype or prejudice.  Examples offered included the potential subconscious belief that women were not the main family bread-winner.  Crucially, the factual background was not gender-neutral.  The ET had made gender specific references to IG being treated more favourably than her husband in being awarded the post. There were specific references to IG being the wife of Mr Geller and that this was something that influenced or may have influenced the Respondent’s paying her, and at one point IG and her husband had been offered a joint salary. .  

The EAT found that it was not sufficient for the tribunal simply to take a view on the veracity of YHC’s genuine belief.  The tribunal was required to explore whether inferences may be drawn from findings of fact.  
While it is good practice for an ET to require the claimant to establish a prima facie case of discrimination before looking to adequacy of the respondent’s explanation for the offending treatment, it is not necessary to rigidly follow this two-stage test. A tribunal should however explore all avenues of discrimination, be it conscious or subconscious, when faced with objective findings that suggest the circumstances of the case may not be neutral to that relevant protected characteristic, as was the case here.
The EAT upheld IG’s appeal and remitted her case to the ET.  


Mr Justice Kerr’s succinct and helpful judgment is well worth reading for junior practitioners or those looking for a recap of some of the important direct discrimination decisions.  Discrimination without knowledge or intent to discriminate is not a new principle.  He cited Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 on the conceptual validity of non-intentional discrimination:

I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects.  It is part of our make-up.  Moreover, we do not always recognise our own prejudices.  Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated.  An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. [para 17] 

An intention to discriminate is not required to establish liability (although it is likely to be relevant to remedy).  Discrimination law is designed to cut through the possible motive of the discriminator to catch cases in which the discriminator may have been led by a preconception or stereotype, whether they were aware of it or not. 

This is done by identifying whether inferences can be drawn from objective facts which may then require the respondent to show that its conduct was not discriminatory.  The ET in this case conducted the requisite investigation of conscious discrimination, but if they did the same of subconscious discrimination, it was not reflected within their reasons.

While not establishing a new principle, this case does offer a timely reminder to practitioners that it is not sufficient to rely on a witness’s denial.  As stated by Lord Nicholls, all human beings have prejudices and stereotypes.  With the development of a more tolerant society discrimination cases involving subconscious, or even well-intentioned, motives may become more prevalent than those in which there is a conscious aim to discriminate. 

This article was first published in the November edition of the Discimination Law Association briefings.

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