Unconscious Bias, Discrimination and a Warning to Public Sector Employers

Christian Grierson and Julie Bann discuss two employment tribunal judgements, which provide a stark warning to public sector employers about unconscious bias and discrimination.

Two recent employment tribunal judgments provide a stark warning to public sector organisations to ensure they have sufficient processes and policies in place, to manage sensitive disciplinary proceedings.

Two well-known and highly regarded organisations have been found by an employment tribunal to have taken unlawful action. Both cases involved a careful examination as to whether unconscious bias had influenced decisions.

The Foreign, Commonwealth and Development Office (“FCDO”) was found by an employment tribunal to have racially discriminated against a black senior civil servant. Then in a separate case, Exeter University was found to have unfairly dismissed an ‘inherently loud’ lecturer.

Together the cases show that employment tribunals are alive to less obvious forms of discrimination and that subtle differences in how an employee is treated can have substantial implications.

Ms Warner v FCDO

In this case, Ms Warner as a senior civil servant was posted to Nigeria. In her role she was responsible for an anti-corruption programme in Nigeria and oversaw certain grants. Ms Warner is black but her senior managers were overwhelmingly white.

Following a decision by Ms Warner to subject a grant to an organisation in Nigeria to closer monitoring, allegations were made by people connected to that organisation, that Ms Warner she had entered into a relationship with an individual from that organisation. The FCDO conducted an investigation into whether she had been in an intimate relationship with an employee of the organisation and if she had failed to follow standard procedures.

Ultimately, the disciplinary investigation concluded by issuing Ms Warner with a 12-month final written warning. After she appealed the outcome and race discrimination was not recognised, she decided to bring the claim to an employment tribunal.

The tribunal found that in the ‘difficult and finely-balanced case’, she had been the victim of unconscious bias by the all-white colleagues who had assessed and conducted the investigation into claims against her. Had the same allegations been made against a white comparator, they would not have been treated as unfavourably.

The tribunal was explicit in emphasising that the discrimination was unconscious, not conscious discrimination. There was no overt malice or discriminatory attitude toward the Ms Warner. However, the colleagues’ minds were closed, so that she was treated unfairly in the disciplinary process.

Dr Annette Plaut v Exeter University

In this case, a physics lecturer at Exeter University who was of eastern European Jewish heritage was dismissed. The University claimed she was dismissed because of two complaints about Dr Plaut, made by doctoral students which were serious enough to warrant dismissal. Whereas Dr Plaut claimed in the investigation there was a total focus on negativity, and not a balanced process which led to her dismissal.

In arguing she was subject to unconscious bias, Dr Plaut’s explained that her heritage meant that she was inherently loud, and her body language was demonstrative. Her conversational style was naturally argumentative. The University argued that she was perceived to shout at students and colleagues. None of this was to do with her being female or Jewish.

The tribunal found that she had been unfairly dismissed but the majority of the claims of race and discrimination were dismissed (some victimisation and harassment upheld). The Tribunal could not see any way that a fair procedure could have led to her being fairly dismissed. The University’s management had decided that Dr Plaut would not be tolerated further.

The tribunal was not convinced by Dr Plaut’s claims of discrimination as any unfavourable treatment because of her inherent ‘loud’ nature. There was no link between her expression of a racial characteristic and the treatment she received.

Exeter university does intend to appeal the judgment.

Comment

The cases came to different conclusions as to whether the employer had discriminated against the employee because of unconscious bias. However, both cases demonstrated a careful analysis of the specific facts and how subtle differences in treatment may stem from a protected characteristic.

Organisations must be proactive in preventing any form of discrimination influencing a disciplinary process. This extends not just to obvious discriminatory action but to more inconspicuous measures.

On the face of both cases, the disciplinary process appears fair and an effort to adopt the appropriate procedures by both organisations has taken place. However, as shown in the Warner case, unconscious bias can impair decisions with serious implications.

Public sector organisations are often highly aware of their obligations to prevent discrimination (particularly in light of the Public Sector Equality Duty). However, box-ticking exercises where staff attend training, read information and undertake risk assessments may not be enough.

The cases should serve as warning to public sector organisations, to take a step back and assess whether sufficient safeguards are in place to maintain the fairness of employment procedures and prevent unconscious bias influencing decisions.

Sharpe Pritchard has an experienced team of employment solicitors who regularly advises public sector clients on all manner of contentious and non-contentious employment law matters. Please contact Christian Grierson if you wish to discuss the implications of this article in more detail.

Christian Grierson is a Solicitor and Julie Bann is a Partner at Sharpe Pritchard LLP.

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