Commerzbank AG v Rajput

Under section 18(4) of the Equality Act 2010, maternity discrimination requires identification of the subjective reason for the unfavourable treatment. Taking advantage of maternity absence may establish that reason; it is not necessarily a “but for” test.

An Employment Tribunal may use its experience when drawing discrimination inferences, including identifying language that may indicate stereotyping. Where stereotypical assumptions form part of the reasoning, fairness requires notice to the respondent and relevant witnesses, with an opportunity to respond. Failure to provide that opportunity may require remission to a fresh tribunal.

An Employment Tribunal upheld complaints by an employee against her employer for direct sex discrimination, harassment and maternity discrimination. It found that decisions concerning an acting role, promotion and treatment during maternity leave were influenced by gender-related stereotypical assumptions.

The employer appealed, arguing that the stereotype case had not been pleaded or put to the witnesses, and that the maternity discrimination finding applied an impermissible “but for” approach rather than the subjective causation test under section 18(4) of the Equality Act 2010. The central issues were whether the tribunal had acted fairly in relying on stereotypical assumptions and whether it had applied the correct causation test.

1. The appeal concerning maternity leave discrimination was dismissed. Section 18(4) of the Equality Act 2010 requires identification of the reason why the treatment occurred. On a fair reading, the Tribunal found that the Claimant’s maternity leave was the subjective reason for transferring significant elements of her role and failing to restore them. It had not substituted a “but for” test.

2. Employment Tribunals may use their experience when assessing discrimination by inference. Particular language may indicate that a decision-maker relied on assumptions about members of a protected group rather than considering the individual circumstances.

   Where stereotyping is relied upon, the tribunal must consider whether an established stereotype exists, whether the decision-maker held it consciously or subconsciously, and whether it significantly influenced the decision.

3. Specialist experience does not remove the requirements of fairness. If a tribunal is considering reliance on stereotypical assumptions, it must give notice to the respondent, its representatives and relevant witnesses. They must have an opportunity to challenge the existence or application of the alleged assumption, including where it is said to operate unconsciously or is generally accepted.

4. The Tribunal’s sex discrimination and harassment findings depended substantially on stereotypical assumptions which had not been advanced by the Claimant or put to the Respondent’s witnesses. The Respondent was therefore denied a fair opportunity to meet the case. The Tribunal had also relied on evidence from a person who was not involved in the relevant decisions.

5. The appeal on direct sex discrimination and harassment was allowed. Those claims were remitted for rehearing before a freshly constituted Employment Tribunal. The fresh constitution was appropriate because the original Tribunal had reached strong adverse conclusions about the Respondent and its witnesses.

• Employment Appeal Tribunal: allowed the appeal on direct sex discrimination and harassment, remitting those claims to a freshly constituted Tribunal; dismissed the appeal concerning maternity leave discrimination.
• London Central Employment Tribunal: upheld certain complaints of direct sex discrimination, harassment and maternity discrimination in a judgment sent on 22 March 2018.