“3.5. … As the wife of [Mr Geller] the Respondents [sic] failed to acknowledge her an employee [sic], the said failure amounting to discrimination by virtue ofsection 39(2)(d) Equality Act 2010 . 3.6. Even though [the Appellant] was …employed by the Respondents [sic] because she was the wife of [Mr Geller] they made unlawful deductions from her wages contrary tosection 13 of the Employment Rights Act 1996 . The said deductions being a detriment for the purpose ofsection 39(2)(d) of the Equality Act 2010 .” (see ET1) 27. Mr Livingston submitted that the circumstances of the Claimants were sufficiently similar to each other to permit of a valid comparison, and indeed he noted the Respondent had itself proposed that they should have a joint salary. 28. In relation to the second limb of the sex discrimination claim - that the Appellant was directly discriminated against by the Respondent in that the Respondent paid her remuneration very late, only agreed to pay her on the basis of timesheet hours on2 September 2013 and only made the actual payment at some stage after she had brought a claim in the Tribunal (withdrawn at the Tribunal because payment in full was accepted to have been made) for unlawful deduction of wages - Mr Livingston submitted as follows. 29. Essentially, he repeated under the heading of the second limb of the direct sex discrimination the same points as made previously: first, that the Tribunal ought to have accepted Mr Geller as an actual comparator; secondly, that the Tribunal did not consider and properly exclude on the evidence the possibility of subconscious or unconscious discrimination; and thirdly, that in the case of the second limb of the claim, the Tribunal failed to address or refer to the burden of proof provisions at all. 30. In support of his argument that this was a case in which the possibility of inferences being drawn was very real, he pointed out that the primary facts found by the Tribunal included not just the history of the Appellant’s employment and the practices of the Respondent, but also (at paragraph 75 of the Decision) the gender specific reference to the Appellant being the wife of Mr Geller and this being a factor that influenced the behaviour of the Respondent, albeit according to the Employment Tribunal in a direction favourable to and not adverse to the Appellant. 31. The submissions of Ms Quigley, who did appear below, for the Respondent were very different. She started from the proposition that the arguments now being advanced by Mr Livingston were not argued below, that the points now raised were not put by Mr Broomhead in cross-examination of the Respondent’s witnesses, and that it was not suggested to them that there had been less favourable treatment of the Appellant by reference to any actual comparator; so that Mr Geller was not being put forward in the case as argued below as an actual comparator. 32. Although she accepted that Mr Broomhead asked certain questions about the Appellant’s employment status, Ms Quigley questioned whether the point about subconscious or unconscious discrimination had been adequately taken on this appeal, looking at those of the grounds of appeal that were permitted to go forward to a Full Hearing. 33. She reminded me of what was said by Elias J, as he then was, in Law Society v Bahl[2003] IRLR 640 EAT, whose reasoning was later upheld in the Court of Appeal in the same case, at paragraphs 97 and 100. It is not enough, as he pointed out, to be treated badly and to be part of a group with a protected characteristic. In the course of her witness statement, as Ms Quigley reminded me, the Appellant did not allege that the reason for her treatment was related to her sex. There was, submitted Ms Quigley, an insufficient evidential basis for the Employment Tribunal to be able to draw any adverse inference of discrimination but ample evidence to support the explanations given by the Respondent’s witnesses, who were found to be honest, truthful and reliable. 34. She reminded me that in paragraphs 74 and 75 of its Decision, the Tribunal had expressly stated that they had considered whether there was any evidence that would permit them to draw an inference of discrimination. That, submitted Ms Quigley, meant that the Tribunal was alive to the need to consider whether there was a basis for rejecting the explanation of Dr Kaye and Mr Baker, the Respondent’s witnesses. That explanation was that the Appellant’s work position was very different to that of a normal employee and justified the time it took to acknowledge her as one; and thus she worked on the basis of timesheets and with no fixed hours. 35. As to the first limb of the direct sex discrimination claim, Ms Quigley submitted that the conclusion at paragraph 80 in the Tribunal’s Decision is a correct application of the exercise referred to in Bahl at paragraph 97 of Elias J’s Judgment, where he said that an inference of discrimination may be rebutted: “97. … by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. …” 36. As to the issue of subconscious or unconscious discrimination alluded to in paragraph 17 of Lord Nicholls’ speech in Nagarajan , Ms Quigley submitted that the Tribunal had made no findings of fact that would trigger the need for an inquiry into that particular type of discrimination. She further submitted that there had been no indication whatever at the hearing below that Mr Geller was being put forward as an actual comparator for the purposes of his wife’s claim; that it was not for the Employment Tribunal to make the case for a Claimant by treating him as one when he had not been put forward as one; and that, in sum, there was no error of law in the Tribunal’s reasoning and conclusions, culminating at paragraphs 78 to 80. 37. As regards the second limb of the direct sex discrimination claim, founded on the lateness of payment of remuneration, Ms Quigley said that once again Mr Geller had not been advanced as an actual comparator before the Tribunal; and even if he had been, his circumstances were so different from hers as not to admit of a valid comparison of like with like between them. 38. She pointed in her skeleton argument to the differences between her case and his. His role was advertised as an employed position, while hers was not. He was paid a salary, while she was not. He worked fixed hours, while she did not. She submitted timesheets, but he did not. He was issued with a written contract of employment at the outset of his employment, while she was not. In sum, there was no ambiguity surrounding his employment status, while there was a very good objective reason for the ambiguity that surrounded hers. 39. Following on from that and specifically with regard to the second limb of the claim, Ms Quigley pointed out that the factors just mentioned meant that Mr Geller was salaried and paid through the Respondent’s payroll automatically each month, which could not happen in the case of the Appellant, because her hours were erratic and had to be verified by production of timesheets to be approved by Mr Bor, which was not the case in Mr Geller’s case. 40. Ms Quigley submitted that there was ample evidence to support the explanation of the Respondent that the reason for the treatment of the Appellant was not sex related at all, but was the illness of Mr Bor, the man required to approve the timesheets. I was taken to the documents and witness statement extracts that were before the Tribunal, showing that Mr Bor was being chased for figures for the purposes of obtaining payment in May 2013, but had to have surgery in and around June 2013 and was recuperating for some time thereafter. 41. Ms Quigley submitted that the absence of any explicit treatment of the burden of proof in a sequential two-stage process was not a basis on which this Appeal Tribunal should interfere with the Decision below, because in the light of Brown and what Mummery LJ said, as I have already mentioned, and also London Borough of Islington v Ladele[2009] IRLR 154 EAT per Elias J (by then President of this Appeal Tribunal) at paragraphs 40 and 41, it was plain that this was a case in which it was unnecessary for the Tribunal to go through the two-stage procedure. 42. Those, then, are the facts, the Decision of the Tribunal and an outline of the parties’ respective submissions, for which I was very grateful. I turn, then, to my reasoning and conclusions in what is left of this appeal. 43. First, I reject the argument of the Respondent to the effect that the case as now argued by Mr Livingston, was not adequately put or argued below or that the arguments in this appeal put before me today are new points not taken below. It seems to me clear from the documents that the case as now advanced by Mr Livingston is no different in essence from what was pleaded in the ET1 grounds and accepted by the Tribunal as constituting the Appellant’s case, in consequence summarising it in the same way as it is now put in paragraphs 71.1 and 71.2 of the Decision, which I have quoted above, and as adjudicated upon by the Employment Tribunal. 44. Next, I do not accept the argument of the Respondent that the submissions made today in relation to subconscious or unconscious discrimination, are not adequately taken as grounds of appeal. It seems to me clear that those arguments are comprised within the first ground, which is that “the … Appellant was not treated less favourably by the Respondents [sic] in failing to acknowledge her as an employee”, and that that was an error of law, and, specifically, it is said beneath that ground that: “7.1.1. The Employment Tribunal find at paragraph 76 that they failed to acknowledge her … as an employee as they had a genuine be [sic] that she was working as a self employed basis [sic]. Having a genuine belied [sic] even if proved is not a defence to a claim of sex discrimination.” 45. It seems to me that that adequately, if inelegantly, advances the point now made in this appeal. 46. Next, I reject the argument on behalf of the Appellant that her husband was sufficiently identified in her claim as an actual comparator for the purposes of her sex discrimination claim. In my judgment, he was not. The case as then advanced by Mr Broomhead did not identify him clearly or sufficiently as an actual comparator at all. I accept Ms Quigley’s submission that it was not for the Employment Tribunal to make the Appellant’s case for her. She was professionally represented, and there is nothing that I can find to support the suggestion that Mr Broomhead put forward Mr Geller as a comparator for the purposes of the Appellant’s discrimination claim. 47. In any case, his circumstances were not materially the same as hers as required bysection 23(1) Equality Act , which requires that in a case such as this “there must be no material difference between the circumstances relating to each case”
“76. We find the reason why the respondent failed to acknowledge [the Appellant] as an employee was because Mr Baker and Dr Kaye genuinely believed that she was working on an ad hoc self-employed basis submitting timesheets to the respondent.” (My emphasis) 50. I am also concerned that in paragraph 80 the Tribunal said, in material part for present purposes, this: “80. We find the reason for failing to acknowledge [the Appellant] as an employee was unrelated to her sex. We are satisfied by the evidence of Mr Baker and Dr Kaye that Mr Baker, with whom the respondents [sic] had a cordial relationship and considered to be an honest man, perceived the status of [the Appellant] as ad hoc, self-employed on the basis that she did not have fixed hours, she determined her hours herself and she submitted timesheets. …” (My emphasis) 51. It seems to me that on a fair reading of the Decision taken as a whole, and especially of those two passages in the context of the Decision read as a whole, the Employment Tribunal reasoned that: (1) the Respondent’s witnesses, Mr Baker and Dr Kaye, were honest, truthful and reliable witnesses; (2) they believed the treatment of the Appellant was based on non-sex related factors; and (3) the Employment Tribunal therefore accepted that that treatment was non-sex related. 52. By accepting their belief that the treatment was not sex-related, they thereby overlooked the very important point made by Lord Nicholls in Nagarajan in paragraph 17, that discrimination can be unconscious or subconscious. I do not say that it is necessary explicitly to refer to and make a finding on the issue of unconscious or subconscious discrimination in every case - it will depend on the circumstances - but I am satisfied that here, it was a misdirection not to do so. 53. I accept Mr Livingston’s point that there are here potentially findings of primary fact from which an inference of discrimination could be drawn. The primary facts as found, included not just the history of the Claimants’ employment and the practices of the Respondent, but also (at paragraph 75) the gender specific reference to the Appellant being the wife of Mr Geller and the finding of the Tribunal that this was something that influenced or may have influenced the Respondent’s paying her. 54. The work environment here was not, on the evidence, entirely gender neutral. The joint salary proposal showed that the Claimants were regarded as a husband and wife team to some extent. Although Mr Geller was, for the reasons already given, not a valid actual comparator and not one that was relied upon, his position as part of the non-gender neutral work environment called for careful examination of the primary findings of fact and not for what amounted virtually to accepting the ipse dixit of the employer’s witnesses. It is particularly troubling that, as the Tribunal found, that the question of the Appellant’s gender was not irrelevant even to the Employment Tribunal’s analysis, as shown at paragraph 75 of its Decision. 55. Moving to the burden of proof issue, when the Tribunal dealt with the first limb of the sex discrimination claim, its treatment of the burden of proof was rudimentary. The burden was mentioned, but the two-stage process was not gone through. I would not, however, have allowed the appeal on that basis alone. It is plain that the Employment Tribunal was aware of the law relating to the burden of proof (see paragraph 71.2 of its Decision), and I accept Miss Quigley’s point that a Tribunal is not required to adopt a formulaic or mechanistic approach to applying the provisions. 56. As regards the second limb of the claim, the burden of proof provisions and their application were not mentioned at all. At paragraph 87, the hypothetical comparator was identified, unobjectionably, as “a man working on a timesheet basis”