Paul McFarlane looks at how employment tribunals have considered the issue of unconscious bias, and examines the steps employers can take to minimise the risk of a claim of discrimination.
If discrimination persists, it follows that there may be subtler forces, or unconscious biases, at work.
Your organisation has robust equality and diversity policies in place; the workforce is fully trained; your decision makers are on board with your inclusivity agenda.
So, can you safely say that your decision making is discrimination free?
The honest answer is probably no – regardless of the calibre of the people you employ and your best efforts to ensure objectivity.
Equality and diversity are increasingly key corporate concerns yet, according to the Guardian Bias in Britain survey published in late 2018, 45% of BAME people feel that they have been overlooked for a job or promotion, in a manner that felt unfair, in the past five years.
Discussion and debate around equality issues has arguably never been greater so, if discrimination persists, it follows that there may be subtler forces, or unconscious biases, at work.
What is unconscious bias?
The term unconscious bias refers to the ‘invisible’ factors that shape our decision making and influence our behaviour and choices. For example, we are likely to inherently favour others who look like ourselves, or who come from a similar background and appear to share our values (a concept referred to as ‘affinity bias’). We are all often tempted to make judgements based on ‘first impressions’, for example attributing the positive characteristics of capability and professionalism to someone who is smartly or conventionally dressed, without really interrogating their skills or experience (the 'halo effect').
Conversely, we may have unconscious negative preconceptions, built up through our own experiences or absorbed from the media or other sources, about individuals or groups who are different ('perception bias').
The wealth of literature published on this issue stresses that everyone has their own particular set of unconscious biases which, although they may be wholly involuntary, may still influence decisions in recruitment, promotion and staff development and can result in a less diverse workforce.
Unconscious bias in the employment tribunal
Far from being an abstract concept, unconscious bias is a real and present risk if your organisation finds itself defending a claim of discrimination in the employment tribunal.
In a recent high profile case, Kings College Hospital NHS Foundation Trust was ordered to pay £1 million in damages to a former employee after an employment tribunal found that he had been unfairly dismissed and subject to race discrimination.
The claimant, Richard Hastings, a black man of Caribbean origin who worked as an IT manager at the Trust, was dismissed on the grounds of gross misconduct after becoming involved in an altercation with a delivery driver. He alleged that he was subject to racial abuse and offensive language during this exchange.
The employment tribunal found that the Trust’s investigation into this incident was tainted by unconscious bias and the claimant’s account treated with “unwarranted distrust and disbelief” because of his ethnicity. It found that opportunities to corroborate the claimant’s version of events were missed in favour of the “desire for an easy solution” based on erroneous first impressions.
As well as hitting the Trust hard financially, this judgment is also a timely reminder of the reputational damage a finding of unconscious bias can cause.
Is unconscious bias always unlawful?
Allowing unconscious bias to effect decision making will be unlawful if, as in the case above, the bias relates to a protected characteristic such as race, gender, disability or sexual orientation.
For example, looking at race, case law decided under the Equality Act 2010 makes clear that the protected characteristic does not have to be in the forefront of a decision maker’s mind for unlawful discrimination to occur. Nagarajan v London Regional Transport and others, decided back in 1999, established that an employment tribunal should examine the “reason why” an individual was treated less favourably, taking into account the employers “conscious or subconscious reason for the treatment”.
The Equality and Human Rights Commission (EHRC) Code of Practice also emphasises that the relevant protected characteristic does not have to be the only or even the main cause, of any alleged unfavourable treatment. A perception or misconception, which contributes only incidentally to a decision, can still taint that decision with discrimination.
Of course, unconscious bias may operate against other traits or characteristics that are not specifically protected by law and it is of course useful to identify and address these. For example, as part of the ‘Bias in Britain’ survey, 80% of employers admitted to making decisions based on regional accents. While unlikely to result in an employment tribunal claim, this particular bias will certainly impact negatively on social mobility and an organisation’s diversity profile.
Reducing the impact of unconscious bias
Tackling unconscious bias can be a daunting task. Pinning down and solving an ‘invisible’ problem will always be a steep learning curve. However the following pointers may help your organisation take hold of this slippery issue and begin to address its impact on decision making:
- Consider unconscious bias training or testing: A useful first step may be to introduce some form of training or testing to enable managers to identify where their unconscious affinities or prejudices might lie. There is some debate as to what extent unconscious bias training actually impacts behaviour, but it will certainly educate managers to recognise any potential biases they may exhibit and, hopefully, to interrogate their own ‘default’ decision making and that of others.
- Take care of your decision makers: Managers who are striving hard to act fairly and implement your equality and diversity strategy may be unsettled or upset to find out that they have implicit biases. It is important to implement unconscious bias training carefully and sensitively, so participants fully understand the results and how they can constructively use any learning going forward. It is important that decision makers are reassured that their integrity is not being called into question.
- Shake up your recruitment practices: Unconscious biases can hit hardest at the point of recruitment and selection for promotion, so think about what you might change to minimise risks. Ensure that, wherever possible, a number of managers are involved in recruitment decisions and that selection panels are as diverse as they can be. It is more likely that unconscious bias will be challenged if there are a variety of different voices and perspectives in the room. ‘Blind recruitment’ where the gender and ethnicity of a candidate is kept back from decision makers until interview stage may also help promote objective assessment.
- Prioritise process consistency: The more robust and consistent your processes, the less chance that decision making will be swayed by personal implicit bias. While some management functions, for example making a decision on a complex grievance, will inevitably involve an element of personal judgment, objective process frameworks are crucial to minimising the risk of discrimination. If you are unsure whether your workplace policies and procedures are fit for purpose, we would be happy to advise you.
- Embed equality and diversity: Unconscious biases are often built on misconceptions or on a limited knowledge of difference. What can your organisation do to encourage discussion of different viewpoints and to increase visibility for underrepresented groups? For example, Weightmans has recently appointed Diversity and Inclusion Champions and Mental Health First Aiders to embed equality and diversity throughout the organisation. Introducing the concept of unconscious bias in itself is bound to open doors to discussion.