🧵Kohli v DIT: EAT explains that whilst there can be subconscious discriminatory motivation, it's not necessary in every case to consider whether there was subconscious discrimination.
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2/ K worked in the Latin America & Caribbean (LATAC) section of DIT's Global Strategy Directorate. There wasn't much going on & when K was seconded onto the Covid test kit team another dept took over the LATAC work temporarily.
3/ When it was time for K to return to LATAC, the work was still being dealt with by the other dept & there wasn't enough anyway for a f/t role. A Head of Africa role had been taken by someone else before K's return & when that was vacant again, K didn't enter the app'n process.
4/ In the midst of all this, K was given an appraisal grade with which she was unhappy. She appealed the appraisal but the appeal was rejected. She made no suggestion of discrimination at the time.
5/ K brought a claim asserting (inter alia) direct race & disability discrimination in respect of both the lack of offers of the Head of LATAC & Head of Africa roles, as well as the performance grade awarded to her.
6/ The ET found no discrimination, & that there were non-discrim reasons for the decisions re roles & that the appraisal grade was based on an honest assessment of her performance.
K appealed against the direct discrimination findings.
7/ Her principal argument on appeal was that the ET failed to direct itself re subconscious discrim or to consider how the decisions complained about may have been impacted by subconscious discrim. She noted that a credible/truthful witness can be subconsciously motivated.
8/ K also asserted that the 'something more' required as per Madarassy could be satisfied re the grade decision by a departmental report showing those who were disabled or minority ethnics were less likely to receive higher performance ratings, likely b/c of unconscious biases.
9/ The EAT held that whilst there could be subconscious discrim motivation, that didn't mean in every case the ET had to refer to the possibility of subconscious discrim. It depends on the circumstances of the case as to whether it's necessary to refer to subconscious discrim.
10/ The EAT held that for there to a finding of inference of subconscious/unconscious discrim, there has to be evidence on which to base the inference. Unreasonable conduct is, of course, not enough.
11/ The EAT noted as distinct from the present case, the type of situation in which a person doesn't realise that their true reasons are discriminatory or where stereotypical assumptions are made. However, such an inference can only be made when supported by inference.
12/ The EAT stressed the ET's primary function as being to determine the true reasons for action. Where they do so, there is little to no room for a finding of subconscious discrim unless the reasons themselves are discriminatory, even as reflecting stereotypical assumptions.
13/ Given it wasn't K's case that stereotypical assumptions had been applied, it had to be K's case DIT's witnesses hadn't given truthful/reliable evidence. But the ET had accepted the evidence of those witnesses. There weren't facts from which to infer K's race played a part.
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