Whilst we are all familiar with the prohibition on intentionally discriminating against someone specifically because of a particular characteristic – for example, their race, religion or gender, it is less well known that the current law also prohibits unconscious or subconscious discrimination. That was the case put forward in Geller v Yeshurun Hebrew Congregation UKEAT/0190/15/JOJ.

Mr Geller began working for Yushurun in September 2011, after answering an advertisement for a vacancy. In December 2012, his fiancée had discussions with Yeshurun about also undertaking work for them. She was willing to do work, so long as she was remunerated. She began to undertake work in January 2013, soon after she and Mr Geller married. Yushurun did not consider her to be a regular employee, but was considering how to remunerate her on a time basis for work done by her, considered to be ad hoc. At a meeting in May 2013, a committee of Yushurun met, and there was a proposal to provide a joint salary of £12,500 to Mr and Mrs Geller between them. They were agreeable to this, but Mrs Geller had not been paid for the work she had undertaken until that point. There was evidence that she had chased payment, but the individual required to sign off the payment was absent due to ill health.

In July 2013 Yushurun informed Mr Geller that he had been provisionally selected for redundancy. Mrs Geller argued that she too was an employee and should therefore be involved in any discussions about potential redundancies.

As a result of this, Mrs Geller brought a number of claims, including the fact that she had been directly discriminated against on grounds of her sex in that Yushurun had failed to acknowledge her as an employee, and made unlawful deductions from her wages. Yushurun argued that they held an honest and genuine belief that Mrs Geller was not an employee; they perceived her status as ad hoc, self-employed on the basis that she did not have fixed hours, she determined her hours herself and she submitted timesheets. The Employment Tribunal accepted this evidence, and her claim failed.

Mrs Geller then appealed the decision. The Employment Appeal Tribunal noted that there whilst in some cases of alleged discrimination, the discrimination alleged is inherent in the act complained of – for example, the Christian hotelier who refused a double bed room to a same sex couple, in other cases it is not, but it may be rendered discriminatory by the motivation, conscious or unconscious, of the alleged discriminator.

The tribunal had clearly considered conscious discrimination in this case and rejected that on the basis of the evidence they heard. Mrs Geller argued in the appeal that what they had failed to consider was whether she had been the victim of unconscious discrimination, as she alleged. She pointed out that Yushurun’s decision not to re recognise her as an employee, and not to pay her for the work she had carried out, may have been based on or influenced by “stereotypical assumptions based on her gender – i.e. that women are not breadwinners”. This point was accepted by the Employment Appeal Tribunal.

They noted that Mrs Geller’s position as the wife of one of its employees was clearly a relevant factor in their treatment of her – it was how she obtained a position within their employ, and they had proposed paying a joint salary for the couple. It was therefore incumbent on the Employment Tribunal to have considered very carefully the reason why she had been treated less favourably, and analyse whether her gender was a relevant factor, even if it was at a subconscious level. The Employment Appeal Tribunal therefore decided that this issue needed to be referred back to the Employment Tribunal to make the relevant findings of fact in order to determine that question.

This case is an important reminder that discrimination can be both conscious and unconscious. Employers need to be aware of stereotypes and bias that might occur within the workplace and take active steps to challenge and target such behaviour.

Safia Tharoo, Barrister, 42 Bedford Row, London