In the recent case of Geller and Geller v Yeshurun Hebrew Congregation UKEAT/2016/0190 the Employment Appeal Tribunal (EAT) found that an employment tribunal (ET) was wrong to accept the respondent witness’s belief that they had not acted in a discriminatory manner without also considering whether they were affected by a subconscious bias.
The claimants were husband and wife. Mr Geller commenced work with the respondent, Yeshurun Hebrew Congregation, in September 2011. At that time, Mr and Mrs Geller were not married.
Shortly after their wedding, Mrs Geller began to undertake some tasks for the respondent on a self-employed basis and discussions took place about her remuneration and whether she should be employed. Those discussions were ongoing until July 2012 when the respondent decided to dismiss the Gellers.
The respondent eventually accepted that Mrs Geller was, in fact, also an employee and she joined her husband in the redundancy exercise. Mrs Geller brought a claim against the Yeshurun Hebrew Congregation for direct sex discrimination relating to her employment status prior to its acceptance of her being an employee and the failure to pay her a wage.
The ET dismissed the claim, concluding that the respondent had a genuine belief that Mrs Geller was initially self-employed and relied on the evidence of the respondent’s witness who they considered to be an “honest man”. It also held that the failure to pay her a wage was due to an administrative error - the accountant was in hospital for an operation - rather than less favourable treatment on the grounds of her sex.
In upholding the appeal, the EAT held that the ET had misdirected itself in only considering the respondent’s conscious behavior without considering whether there was subconscious discrimination.
The case serves as a helpful reminder that employment tribunals should not assume the absence of subconscious bias just because a respondent genuinely believes they did not behave in a discriminatory way.