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Unconscious bias will lead to increased discrimination claims

Kate Palmer, HR Advice & Consultancy Director at Peninsula

The Foreign, Commonwealth and Development Office was recently found to be racially discriminatory towards a black civil servant with 33 years’ service.

Sonia Warner was “pushed away”, “disowned” or “othered” by colleagues when in 2019, Warner was accused of misconduct. It was alleged that Warner had formed an intimate relationship with an employee of an organisation receiving UK government cash.

A six-month departmental inquiry was launched into Warner, though she has always denied this claim.

Later, at tribunal, it was concluded that Warner had been the victim of unconscious bias as unfair assumptions and unfound claims we made against her, and because she had been treated unfairly in the disciplinary process.

The reasonings given by the FCDO on their conduct did not “adequately explain the degree of unfairness and unreasonableness in the treatment” and so the tribunal determined the missing factor in this case was the claimant’s race.

Kate Palmer, HR Advice & Consultancy Director at Peninsula, suggests that although there was not conscious race discrimination in this case, unconscious bias is still very much an issue and can result in discrimination claims.

“This case is a reminder for employers that discrimination does not need to be overt, and that it is not always obvious that it has happened at all. In fact, it can happen even by employees who did not consciously have an intention to act in that way.

“A key takeaway from this case for employers is that where there is no sensible explanation for what has happened, but it does not seem right, it may be that unconsciously the action was influenced by the protected characteristic of the victim. As such, decisions or actions that seem outside the normal course of things, or that cannot be explained with any other sensible explanation, should be viewed under the lens of unconscious bias.

“Whilst equality and diversity training is the norm, and employees should be aware that they should not discriminate, unconscious bias goes to the root of how and why decisions are made, and the assumptions that underpin them. Therefore, employees need to get used to challenging their own behaviour and that of others, to build in checks that the action or decision is not based on an unfair and discriminatory assumption that comes through a view of people holding a particular characteristic.”

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