Subconscious Discrimination in the Workplace

In Geller v Yeshurun Hebrew Congregation UKEAT/2016/0190, the Employment Appeal Tribunal (EAT) considered the concept of subconscious discrimination under U.K. discrimination law.

Mr and Mrs Geller worked for the Yeshurun Hebrew Congregation (Congregation). The Congregation initially considered Mrs Geller to be self-employed. Discussions took place about whether she was actually an employee and the fact that the Congregation had failed to pay her wages. These discussions were still ongoing when the Congregation notified Mr Geller (but not Mrs Geller) that he had been provisionally selected for redundancy. Mrs Geller argued that she was an employee and should also be considered for redundancy, which the Congregation accepted. Both Mr and Mrs Geller were ultimately dismissed for redundancy. Mrs Geller brought a claim for direct sex discrimination, alleging that the Congregation’s failures to consider her as an employee and to pay her wages for that period were because of her sex.

Mrs Geller’s claims failed at first instance. On appeal, the EAT held that the Employment Tribunal had incorrectly applied the law by failing to consider whether there had been any subconscious discrimination and relying solely on evidence that there had been no “conscious” discrimination. The EAT highlighted two categories of direct discrimination case: the first is where the direct discrimination is inherent in the act complained of, in which case there is no need to consider whether there had been conscious or subconscious discrimination. The second category arises where the discrimination is not inherent in the act complained of but may be discriminatory because of “the motivation, conscious or unconscious of the alleged discriminator”. In such cases, Employment Tribunals must consider both conscious and subconscious discrimination, which had not happened here. Accordingly, the EAT remitted the case to the Employment Tribunal for rehearing.