Maurice Kay LJ (The Vice President of the Court of Appeal Civil Division) sitting with Rix LJ and Rimer LJ in Ministry of Defence v Cartner  EWCA Civ 1516 has made an statement which has the potential to be interesting.
The Judgment is primarily concerned with the technical point of the circumstances in which the EAT, faced with an error of law should remit the matter to the Tribunal for consideration.
However, the Judgment also contains a rather sweeping statement relating to the nature of direct discrimination. Readers of this website will be familiar with the well known case of Anya v University of Oxford  ICR 847 in which the Court of Appeal emphasised that there will rarely be overt evidence of discrimination and that Tribunals were entitled to look at a wide range of evidence in determining whether an act was discriminatory.
Arguably in MOD v Cartner, Maurice Kay LJ goes further:
“However, direct discrimination does not have to be, and is usually not, intentional or deliberate.” (Para 11)
Whilst Anya highlighted the existence of subconscious discrimination, I would suggest that the impression to date has been, ‘discrimination need not be conscious’. I.e. unconscious discrimination is possible and there will rarely be overt evidence of it.
By making this statement in this way, Maurice Kay LJ is arguably changing the emphasis in the theory behind the law. It is an interesting statement and may be useful for Claimant’s in the future.
Perhaps the effect of the statement was unintended?