Subconscious discrimination

Case 16: The facts

Mr Lewis, who is gay, was dismissed for gross misconduct following alleged inappropriate sexual conduct. He claimed discrimination on grounds of his sexual orientation.

A tribunal upheld a number of his complaints, finding that his employer's HR manager had embellished and exaggerated her evidence and lacked credibility on some points. It concluded that her report of her investigation was discriminatory, although her views did not influence managers dealing with Lewis's disciplinary proceedings or appeal.

The ruling

The Employment Appeal Tribunal ruled that the case would have to be sent to a different tribunal for re-hearing. Lewis's case was that the employer had rushed to a conclusion based on the HR manager's view that he was guilty (caused by her stereotyping of him as a gay man), and that her views permeated the disciplinary process. The tribunal had not focused on this argument, but had based its judgment instead on the manager's lack of credibility and bad faith. This was not an argument put by Lewis during the hearing, so the employer had not had an opportunity to respond to it. Neither had the tribunal dealt with the claim of subconscious discrimination.

Lewis v HSBC Bank plc EAT/0364/06