Tribunal cases where claims of unlawful discrimination have succeeded because of stereotypical assumptions by the decision-maker, rather than on direct evidence of discrimination, are on the rise. The recent Employment Appeal Tribunal case of Commerzbank AG v Rajput 2019 gives some warning signals to employers.
R applied for an internal vacancy as head of market compliance (HOM). Her application, along with that of the other female candidate was rejected because Mr Neuman, the decision maker, decided both were very divisive personalities based on their being ‘both intrusive’ in coming into his office ‘trying to forward their own interests’. In a man, this behaviour could be seen as positive traits, showing ambition and wishing to progress’, said the employment tribunal. The Judge further commented that ‘men are often praised for their hard work and determination whereas in this case it is notable that the decision maker, Mr Neumann referred to the Claimant’s ‘unhealthy obsession with work.’
R was called ‘controlling’ because she came back to work after her waters had broken but before her maternity leave began. She was also excluded from meetings whilst on maternity leave and on one occasion, was told by the new HOM that she was not required. The tribunal viewed this as active discouragement.
On her return to work R felt marginalised. A colleague was carrying out much of her work and there was no handover as there was no intention for it to be handed back to R.
The EAT upheld the tribunal decision that the removal of aspects of her job was direct maternity discrimination. However, it allowed the respondent’s appeal that as the allegations about stereotypical assumptions by the decision makers had not formed part of the Claimant’s case and only appeared in the tribunal judgment, they were not properly put to the respondent and so should be reheard. It will be interesting to see the extent to which the stereotypical assumptions argument that positive male attributes are seen as negative in a woman succeeds.
The EAT confirmed that in a case based on stereotyping arguments it is necessary to establish that: (a) there was an established stereotype, (b) consciously or sub consciously the decision-maker held that attitude about the stereotype and (c) he was significantly influenced by that stereotypical assumption about those with the same protected characteristic as the individual concerned, rather than treating her as an Individual. After all, even if a stereotype is likely to be true for many of those with the same protected characteristic, it is not necessarily true of all of them.
Examples of other stereotypes of which employers should beware are:
- That someone’s memory deteriorates with age.
- That men are more likely to be the main wage earner.
- That women are more likely to take time off for childcare reasons.
- That women are not as physically strong as men.
What does this mean for employers?
The tribunal held that in an ‘opaque environment’ as in this case, there is greater risk of unlawful discrimination. Having written records of your objective processes and practices on promotion and recruitment can prevent such claims arising at all. In addition, train your managers not to make stereotypical assumptions or act on hunches, but to make an objective decision on the evidence relating to that employee, whether this is in the context of recruitment or grievance proceedings or any work situation.
It is also worth remembering that it is all too easy whilst an employee is on maternity leave to make changes to their role, which should be avoided unless there is a good business reason for doing so. Otherwise a tribunal could hold that the reason for the change is that the employee had been on maternity leave which is likely to be unlawful discrimination.