Unconscious bias amount to discriminatory behaviour

Less favourable treatment of an employee due to their protected characteristic (e.g. race, disability, sex etc.) can lead to lengthy and costly employment tribunal claims for discrimination. As such, business must pro-actively implement measures to reduce the risk of discriminatory actions and behaviours occurring in the workplace. However, a recent tribunal case shed light on new difficulties by outlining the possibility of covert discrimination through unconscious bias.

Unconscious bias taints the decisions individuals make since they form quick, ignorant opinions about people and situations. These opinions are often developed without the person being aware or in control of it, hence the unconscious element of the bias. For example, people are often more drawn to others who look and act the same as them, or who have shared life experiences, such as growing up in the same town, supporting the same sports team or going to the same university. Connecting with individuals in this way, especially when recruiting, can lead to one candidate being scored less favourably than another, despite having equal qualifications. Whilst it may seem like a minor issue, in reality, this is what contradicts equality and diversity in the workplace.

This was seen in the case of Warner v Foreign Commonwealth Development Office (FCDO), whereby the Employment Tribunal (ET) had to consider whether or not a black employee had been treated less favourably than a hypothetical white employee. Whilst no evidence of malice was found, it was deemed unconscious bias impacted the decision of the all-white panel involved in Warner’s disciplinary process.

For context, allegations were made against Warner by an organisation she worked with in her role as Senior Governance Advisor, stating she was in a relationship with one of their employees, which had not been declared in accordance with the FCDO policy. This led to a 6-month long investigation, during which Warner was disowned and pushed away by colleagues. Not once in the investigation process did the panel question whether there was a relationship between the two parties. Instead, the ET found Warner was treated with an unwarranted degree of suspicion, that assumptions were made about her and that minds were closed against her.

Ultimately, the tribunal concluded that there was no reasonable excuse for the behaviour of the all-white group who completed the disciplinary process, which was poor and unfair. Comparing her treatment to that of a hypothetical white woman, it was decided that the only reasonable explanation for why this happened could be the unconscious bias opinions about her race. It must be noted that, since this is only an ET decision, the outcome is not binding authority. However, the judgement does provide a good understanding of the stance the tribunal system takes on this matter, therefore making it an important case for employers to remember.

To prevent re-occurrence of such claims, employers should take steps to mitigate unconscious bias in the workplace. Common measures include management training, blind recruitment strategies and ensuring there are always two decisionmakers present at an interview. These initiatives should be tied into wider policies and procedures relating to discrimination, bullying and harassment, as well as effective support for those who raise grievances.

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