REWARD
Employment law round-up
In each issue, NicolaMullineux, senior employment specialist for Peninsula, explores the outcomes of three different employment law cases
This instalment focuses on: ● unconscious bias race discrimination ● dismissal relating to self-isolation ● a development on sexual harassment claims. Unconscious bias race discrimination Less favourable treatment of an employee, due to a protected characteristic (e.g., race, disability, sex etc.) can lead to lengthy and costly employment tribunal (ET) claims for discrimination. As such, businesses must implement measures to reduce the risk of discriminatory actions and behaviours happening 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, as 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 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 mean that one candidate is scored less favourably than another, despite having equal qualifications.
Although this could seem like a minor issue, it contradicts equality and diversity in the workplace. A recent tribunal case shed light on new difficulties, by outlining the possibility of covert discrimination through unconscious bias This was seen in the case of Warner v Foreign Commonwealth Development Office (FCDO), in which the ET had to consider whether a black employee had been treated less favourably than a hypothetical white employee. While 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 six-month investigation, during which Warner was disowned and alienated 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, and that assumptions were made about her and minds were closed against her. Ultimately, the tribunal concluded 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 this happening 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 a 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 ● ensuring there are always two decision makers present at an interview. These initiatives should be tied into wider policies and procedures relating to discrimination, bullying and harassment. Effective support should be provided to those who raise grievances.
| Professional in Payroll, Pensions and Reward | February 2022 | Issue 77 22
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