Geller v Yeshurun Hebrew Congregation

In a direct discrimination claim, an employer’s genuine belief that treatment was unrelated to sex does not by itself exclude discrimination. Where discrimination depends on the reason for treatment, the tribunal must consider whether unconscious or subconscious discrimination can be inferred from the objective primary facts. A benign motive and the discriminator’s own understanding of the reason are irrelevant.

The two-stage burden of proof under Equality Act 2010, section 136, is good practice but need not be applied mechanically where the tribunal is not prejudiced in deciding whether discrimination occurred. However, failure to address unconscious discrimination may constitute a misdirection. The case was remitted for reconsideration.

Mrs Geller worked for the respondent from January 2013. She was initially treated as working on an ad hoc, self-employed basis and was not recognised as an employee until September 2013. She also received delayed payment for work recorded on timesheets.

The Employment Tribunal rejected both limbs of her direct sex discrimination claim. It found that the respondent’s witnesses genuinely believed that she was not an employee and that the delayed payment resulted from an administrative failure connected with the illness of the treasurer. The Tribunal also considered that a hypothetical male working on a timesheet basis would have been treated similarly.

On appeal, the central issue was whether the Tribunal had properly considered the possibility of unconscious or subconscious sex discrimination.

1. Appeal allowed and decision remitted. The Employment Tribunal’s decision on both limbs of the direct sex discrimination claim could not stand.
2. Direct discrimination may be inherent in the act complained of, in which case it is unnecessary to investigate the discriminator’s mental process. In other cases, including this one, the act is not inherently discriminatory and the tribunal must determine the reason for the treatment and whether a person without the protected characteristic would have received different treatment.
3. The Tribunal misdirected itself on the first limb by treating the honest and genuine beliefs of the respondent’s witnesses as sufficient to establish that the treatment was not sex-related. That approach overlooked the principle in Nagarajan v London Regional Transport [1999] IRLR 572 that discrimination may be unconscious or subconscious. The tribunal had to consider whether such discrimination could be inferred from the objective primary facts, including the gender-specific context in which Mrs Geller was engaged as Mr Geller’s wife and the proposal for a joint salary.
4. The same error affected the second limb. Although the Tribunal identified an appropriate hypothetical comparator, it did not separately consider whether unconscious discrimination might explain the delayed payment. The absence of a formulaic reference to the burden of proof was not, by itself, an error of law.
5. The two-stage process under section 136 of the Equality Act 2010 is good practice, but a tribunal may move directly to the respondent’s explanation where the claimant has not been prejudiced and the issue can properly be determined on the evidence.
6. Mr Geller was not an actual comparator. His circumstances were materially different for the purposes of section 23(1) of the Equality Act 2010.
7. The issues were remitted to the same Employment Tribunal, subject to case-management directions concerning any further evidence.

• Employment Appeal Tribunal: Allowed the appeal concerning both limbs of the direct sex discrimination claim and remitted those issues to the same Employment Tribunal.
• Employment Tribunal: Rejected the claims that failure to recognise Mrs Geller as an employee and delayed payment of wages constituted direct sex discrimination.