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Published 8 August 2019
THE FACTSMs Rajput was a senior compliance adviser and vice president at Commerzbank. She, and two other vice presidents, a male and a female, applied for the role of head of market compliance. The male was appointed as acting head and “point person” pending a final appointment decision. The decision maker had made that decision on the basis that the two women were “divisive personalities”. The decision maker also said that, when they were trying to put forward their positions, the two women were “intrusive”, and were trying to “further their own interests”.
Ms Rajput subsequently announced that she was pregnant. After this had been announced, the permanent role of head of market compliance was filled by an external candidate. Ms Rajput’s waters broke at work, and (having attended hospital) she returned to work for a short time to try and finish off some work before her maternity leave began. This was described as an example of her being “controlling”. She was referred to as having an “unhealthy obsession with work”. During her maternity leave, she attempted to call into meetings and was strongly discouraged from doing so. On Ms Rajput’s return from maternity leave, managerial aspects of her role were effectively removed by Commerzbank. One of her direct reports, who had been carrying out Ms Rajput’s role during her maternity leave, kept parts of Ms Rajput’s role. An employment tribunal found that Ms Rajput had suffered direct sex discrimination in relation to the preferential treatment of her male colleague as acting head of market compliance and in relation to the lack of fair consideration for the head of market compliance role. The tribunal found that the decision maker had made stereotypical assumptions about her and the other female applicant for the role, as being “divisive”, and that their willingness to pursue their career ambitions was regarded as negative, whereas men with similar “forceful personalities” are often lauded. This also amounted to harassment. The tribunal also found that Commerzbank had discouraged Ms Rajput from attending a meeting while on maternity leave because of assumptions about what women should and should not do while on maternity leave. The tribunal commented that “men are often praised for their commitment to work”, whereas Ms Rajput had been described in a pejorative manner for returning to work after her waters broke.The tribunal also held that Ms Rajput had been subjected to direct maternity discrimination in relation to the removal of the managerial aspects of her role. Commerzbank appealed to the EAT. It argued that the tribunal had not given Commerzbank the opportunity to challenge the existence and application of the alleged stereotypes. The EAT upheld this ground of appeal. Tribunals can consider the language used by decision makers. Language can show that (whether consciously or unconsciously) the decision maker has made a decision on discriminatory grounds or that the decision maker was acting on stereotypical assumptions about people sharing protected characteristics, without considering them as individuals. In considering this, tribunal members can draw on their own experience. However, the parties to the claim should be given the opportunity to challenge whether the stereotypical assumption exists and its application by the decision maker. This had not happened in this case. The tribunal remitted this issue to be considered by a fresh tribunal. Commerzbank also challenged the finding in relation to Ms Rajput’s diminished role on her return from maternity leave. It argued that the tribunal had wrongly used a “but for” test. It argued that Ms Rajput’s maternity leave had been the opportunity but not the reason that it had taken away aspects of her role, and that the real reason had been that her role had naturally diminished during her maternity leave. The EAT dismissed this ground of appeal, holding that the tribunal’s conclusion was that the subjective reason for what happened was that Ms Rajput had been on maternity leave, and that it had not used a “but for” test. WHAT DOES THIS MEAN FOR EMPLOYERS? Employers must be careful of making assumptions about employees with protected characteristics. It may well be that on remittal this decision remains the same and Commerzbank are unable to defend the language used as non-discriminatory. The case is also a reminder that employers who remove aspects of employees’ roles during periods of maternity leave will find it hard to argue successfully that this is because the role has naturally diminished during the time that the employee was absent. Without compelling evidence to the contrary, tribunals are more likely to find that changes in role have been made because of the employee’s maternity leave.
The tribunal commented that, where advantages and promotions occur in an “opaque environment” there is much more risk of discrimination occurring. In this case, the tribunal stated, the absence of any written records of appointment decisions or of the interview notes of internal candidates was just the type of opacity that can allow discrimination. While not part of the appeal, this is a reminder to employers of the need for open, transparent and documented decision making.
Commerzbank AG v Rajput  UKEAT 0164_18_2806
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