Successful race discrimination claim due to unconscious bias

An Employment Tribunal has ruled that a civil servant, Sonia Warner, who worked for the Foreign, Commonwealth and Development Office was subject to racial discrimination during a disciplinary process. Ms Warner was working in Nigeria as a senior governance adviser when she gave the view that a grant given to a Nigerian charity should be monitored more closely. Shortly thereafter there was an allegation made that Ms Warner was having an affair with an employee of the charity which led to a disciplinary process being initiated. 

A six month investigation was carried out which ultimately led to Ms Warner being given a final written warning. The Employment Tribunal found that Ms Warner had been subjected to unconscious bias by her white colleagues who carried out the disciplinary process with her being "treated with an unwarranted degree of suspicion, that unfair assumptions were made about her, that minds were closed, that she was treated unfairly in the disciplinary process, which took an unreasonably long time". 

Unconscious bias is often difficult to prove in an Employment Tribunal but as happened in this case, where the explanations provided by an employer for the manner in which an employee has been treated do not stack up, an inference may be drawn that the real reason for the treatment is a person's race. The same inference may be drawn in the context of other protected characteristics under the Equality Act, such as sex (gender). 

This case is a reminder of the importance of providing effective equality and diversity training to all employees but particularly those who may be required to handle a disciplinary or grievance process and that this training should cover the concept of unconscious bias. Another key area in which unconscious bias can creep in is during recruitment and that is why some organisations take steps such as removing applicants' names or gender to help reduce the chance of unconscious bias affecting the decisions made about who to interview, for example.