It is a well established principle that an employer does not need to be acting consciously in order for an employee to establish a discrimination claim: in the words of Lord Brown-Wilkinson "those who discriminate … do not in general advertise their prejudices: indeed they may not even be aware of them." This can be seen in the recent case of London Probation Trust v Francis, in which an employee of Afro-Caribbean origin was passed over for promotion in favour of a white candidate. At the tribunal, it was found that the all white panel had taken an inconsistent approach to scoring the two candidates. Although there was no indication of conscious action to discriminate against Ms Francis, anecdotal evidence given at the tribunal suggested that there was an 'affinity bias' in the workplace with white employees receiving more informal support.
Unconscious bias may also act as a brake on the process of establishing a diverse workforce. Affinity bias is often pointed to as a reason for lack of diversity at senior and board level in FTSE companies. Unconscious bias is implicitly harder to root out than conscious bias. However, training is available which is designed to identify and tackle unconscious and "affinity" bias, and many organisations now institute mandatory courses for all employees.
Employers wanting to limit the risks of unconscious bias would be wise to take proactive steps, which might include:
- training to bring attention to diversity and inclusion issues, with a particular focus on unconscious bias rather than general discrimination principles;
- diversity on interview panels for job applicants / promotions; and
- auditing existing processes to ensure that the valued skills and behaviours are not narrow in a way that indicates a bias for one group of people over others.
For more information as to how one might tackle unconscious bias in the workplace, please do not hesitate to contact any member of the team.