![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Commerzbank AG v Rajput [2019] UKEAT 0164_18_2806 (28 June 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0164_18_2806.html Cite as: [2019] ICR 1613, [2019] IRLR 772, [2019] UKEAT 164_18_2806, [2019] UKEAT 0164_18_2806 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2019] ICR 1613]
[Help]
At the Tribunal | |
On 12 April 2019 | |
Before
THE HONOURABLE MR JUSTICE SOOLE
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR THOMAS LINDEN QC (of Counsel) Instructed by: GQ Employment Law 21 Ironmonger Lane EC2V 8EY |
For the Respondent | MS KARON MONAGHAN QC & MS ![]() ![]() ![]() (of ![]() Instructed by: Bates Wells & Braithwaite LLP 10 Queen Street Place London EC4R 1BR |
SUMMARY
SEX DISCRIMINATION
MATERNITY RIGHTS AND PARENTAL LEAVE
The Claimant brought complaints against the Respondent bank including direct sex discrimination, harassment (s.26 EqA) and maternity leave discrimination. The ET upheld the claims on the basis which included the conclusion that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave.
The Respondent appealed the decisions on sex discrimination/harassment on the basis that it had been no part of the Claimant's case that the decisions were based on stereotypical assumptions; nor had the Tribunal suggested to the Respondent or its witnesses that it had such matters in mind in its consideration of the inferences to be drawn about the reasons for the conduct of which complaint was made. The reference to stereotypical assumptions had appeared for the first time in the Judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions or their application to the conduct of the decision-makers; and that this constituted unfairness.
The Respondent challenged one of the two findings of maternity leave discrimination, on the basis that the Tribunal had wrongly substituted a 'but for' test of causation for the subjective test required by s.18(4) EqA.
The EAT dismissed the appeal on maternity leave discrimination, holding that on a fair reading of the Judgment the Tribunal had applied the correct test of causation.
The EAT upheld the appeal on sex discrimination/harassment, holding that the Respondent and its witnesses should have been given prior notice and an opportunity to respond to the suggestion that it had acted on the basis of stereotypical assumptions and the failure to do so was unfair: Hammington v Berker Sport Craft Ltd [1980] ICR 248 and like authorities applied. The claims were remitted to be heard before a freshly constituted Tribunal.
THE HONOURABLE MR JUSTICE SOOLE
Narrative
The Judgment
Stereotypical assumptions
"174. Discrimination may result from the stereotypical assumptions that disadvantage women. Traits that are considered as positives in men may be seen as negative when they are exhibited by women. Men are often praised for their hard work and determination, whereas in this case it is notable that Mr Niermann referred to the Claimant's "unhealthy obsession with work".
175. Men are often praised for ambition and wishing to progress whereas Mr Niermann stated when trying to explain what he meant by the word "divisive", when applied to the Claimant and Ms von Pickartz, said that when they discovered that Mr Jooma was leaving they came to his office and tried to put their positions forward which he considered was "intrusive". He criticised them for trying to "further their own interests". When put to them that an alternative word that might better describe what he was referring to was "forceful" he accepted that that might well be the case. Men are often lauded for being forceful personalities whereas Mr Niermann saw it as a negative when demonstrated by these two women. We appreciate that English is not Mr Niermann's first language so were careful to ensure he had adequate time to seek to explain precisely what he meant.
176. Men are often praised for their commitment to work whereas it is notable that a number of the Respondent's witnesses have spoken of the Claimant in a pejorative manner for returning to work after her waters broke and she had attended hospital. It was clear that her baby was likely to come earlier than expected and she attempted to finish off some work before she left. While it is understandable and reasonable for her colleagues to be concerned for the health of a pregnant woman and her baby, the Respondent has not explained why they spoke of the Claimant in such pejorative terms saying she "had to be forced out of the office". Mr Dyos referred to this being an example of the Claimant being "controlling". Some of the Respondent's witnesses spoke of their experience as fathers as if it would allow them to judge the situation better than the Claimant could herself.
177. There can also be a tendency, particularly where advantages are awarded without transparency, for people who select to prefer those who look like themselves. It is telling that Mr [Dyos] suggested that the explanation why Mr Whittern was recorded in 2015 as the person closest to promotion was because of his "personality", that he was "easy to get along with" and "a good communicator". There was nothing to suggest that the Claimant and Ms von Pickartz were poor communicators and to the extent that there was tension in the office that resulted from Mr Whittern having been made point person/acting head without transparency, and the continued pretence that this was of no real significance.
178. Another aspect of a tendency to prefer those who are like oneself can be to prefer their explanation for problems.
179. There can also be a stereotype that women are too emotionally involved in office relations or politics. This stereotype was demonstrated by Mr Niermann describing the Claimant and Ms von Pickartz as "divisive". He seemed almost unable to explain why he used the term. The only thing he could come up with was that they wished to put themselves forward as possible replacements for Mr Jooma. The word divisive was repeatedly used in this case, but only about women. Mr Walsh was unable to give a rational explanation why he referred to Ms von Pickartz as divisive, suggesting unconvincingly that she divided opinion. There was an assumption that the "toxic" relations in the office must be the fault of the "divisive" women.'
Appeal on maternity leave discrimination
The Appeal on Stereotypical Assumptions
The Respondent's Submissions
Claimant's Submissions
Analysis and Conclusions
Note 1 Citing Equal Opportunities Commission v. Director of Education [2001] 2 HKLRD per Hartmann J at [86]. [Back] Note 2 See e.g. Fraser v. University of Leicester (UKEAT/0155/13/DM) at [74] and authorities cited therein. [Back]