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.
Citations:
[2019] UKEAT 0164 – 18 – 2806
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 11 July 2022; Ref: scu.639215