The case of Commerzbank AG v Rajput reminds employers to take care that employment decisions are not taken on the basis of stereotypical assumptions
Ms Rajput, a senior compliance adviser at Commerzbank, applied to be head of market compliance (HOM) alongside two other applicants (one male, one female). Both women were unsuccessful because they had ‘divisive personalities’ and had been ‘intrusive’ in trying to ‘further their own interests’; and the (more junior) male applicant was appointed acting HOM. Ms Rajput then announced her pregnancy, and an external candidate became HOM. Ms Rajput continued to work to the end of her pregnancy, returning to complete work after her waters broke, and she sought to join work conference calls early in her leave. On her return, the managerial aspect of her role had been removed and retained by her maternity leave replacement.
Ms Rajput brought a number of discrimination claims. Her behaviour before her maternity leave was described by Commerzbank as ‘controlling’ and she was described as having an ‘unhealthy obsession with work’ whilst on maternity leave.
Ms Rajput succeeded in the employment tribunal (ET). The ET concluded that the decision-maker had acted on the basis of stereotypical assumptions about women.
The case was appealed to the Employment Appeal Tribunal (EAT) which held that the ET had not discussed the issue of stereotypical assumptions with the employer or its witnesses or given them the opportunity to challenge those assumptions and whether they had influenced the decision-maker: and the case was sent back for consideration by a fresh ET.
Nonetheless, the EAT made it clear that ETs are entitled, and to some extent required, to draw on their experience when considering if an inference of stereotypical assumptions should be made in any case.
Few employers knowingly act on stereotypical assumptions, but unconscious bias is always a risk: training on unconscious bias, and rigorously checking the bases on which decisions are made will help employers reduce the risk of successful discrimination claims.