The concept of unconscious bias has become familiar to us, in the context of Equality, Diversity and Inclusion: An individual’s beliefs and views about others may influence them to think better of someone because they believe they’re alike, or less of someone because that person is different to them.

The Black Lives Matter protests of recent times have led to a number of employers to challenge and seek to eradicate unconscious bias in their workplaces – such beliefs have been shown to present a risk of harm to both businesses and to individuals. One possible harm is that individuals suffer discriminatory treatment at the hands of their colleagues.

A recent case in the employment tribunal found that staff in the Government’s Foreign, Commonwealth and Development Office (‘FCDO’) had unconsciously discriminated against one of its civil servants, Ms Warner. Ms Warner had, at the time of the relevant facts, recently been appointed a Senior Government Adviser in Nigeria. One of her key roles was to ensure that foreign aid grants given by the UK Government to local Nigerian organisations were being properly spent.

One such organisation was the Youth Alive Foundation (‘YAF’) and had been awarded a significant grant just before Ms Warner took up her post.

Following several investigations, Ms Warner decided to downgrade YAF’s grant status as she had concerns about its governance. Some of Ms Warner’s colleagues who had been responsible for procuring the YAF grant suggested her decision had been motivated by an affair Ms Warner had had with a YAF member.

Ms Warner provided copious evidence justifying her concerns about YAF and denied the affair. However, a disciplinary process was commenced into Ms Warner’s conduct.
That process was criticised by the tribunal for being overly long (over 6 months) and procedurally flawed and resulted in harm to Ms Warner which, the tribunal concluded, was the result of unconscious discrimination.

It found that Ms Warner was ‘pushed away’, ‘disowned’ or ‘othered’ during the disciplinary process in a way it considered would not have happened were she a White civil servant with equivalent length of service and experience, nor would they have been treated as unfavourably.
The tribunal noted as significant that the staff involved in the investigation viewed themselves as working in a diverse culture where people were treated without assumptions or stereotyping based on race. However, it also noted that all the staff in Ms Warner’s team who were more senior to her were White, and that senior managers in the FCDO at large were overwhelmingly White. It had also seen evidence that an internal magazine had perpetuated racial stereotypes by suggesting that Black men were more likely to sexually harass White women.

Key examples of the unconscious discrimination suffered by Ms Warner were:

  • That Black people employed by the FCDO were being linked with Black staff at the external organisation, leading to a subconscious ‘us and them’ attitude by the investigators. For instance, although the FCDO were made aware that a senior member of the YAF had been monitoring her movements in her home to check if she was having an affair, the FCDO did nothing to protect her safety. They seemingly believed that Ms Warner, as a Black person, was part of the same community as the YAF member and therefore not seen as a risk to her, as she would have been if she were White.
  • There was a greater readiness to believe that the Ms Warner was having an affair with a YAF member because they were of the same race and due to the racial stereotype of ‘the promiscuous Black woman’.
  • The investigator demonstrated a stereotypical assumption that Black people are more aggressive when characterising Ms Warner’s actions as such.

As this case illustrates, unconscious bias is not easy to recognise within teams and holding one-off equality and diversity training may not be sufficient to eradicate this. However, given the harms which such bias can cause, the duty of employers remains to do what they can to challenge the perpetuation of stereotypes. Research suggests that an instruction to avoid implicit stereotyping can actually increase bias. Successful learning and development programmes are those which sensitively tackle the question and aim to move thinking away from reliance on stereotypes. Putting such steps in place will assist employers to demonstrate that they are meeting obligations to prevent discrimination in the workplace.

If you would like further advice tailored to your particular circumstances, please contact us.