Unconscious or Subconscious bias refers to an unconscious form of discrimination that arises from false beliefs, assumptions and/or stereotypes that usually relate to protected characteristics, for example age, race, gender or sexual orientation.
It is important, as an employer to recognise that such bias may well exist in the workplace and may influence key business decisions, such as recruitment and internal promotions. Ms Kohli alleged this very issue in a case against the Department for International Trade.
Ms Kohli was of Indian origin and alleged among other issues, that the Department for International Trade directly discriminated against her on grounds of race in failing to afford her various internal roles. Further, Ms Kohli alleged discriminatory treatment in in the way her appraisal grade was issued.
The Employment Tribunal dismissed the claims and found that there were valid operational reasons for the lack of job appointment, and the appraisal grade was based on an honest assessment by her manager, which in turn had no adverse impact on job opportunities or career development.
Ms Kohli appealed to the Employment Appeal Tribunal alleging the Employment Tribunal had failed to consider the question of subconscious discrimination and how this may have had an impact on the actions of her employer.
The Employment Appeal Tribunal were required to consider whether the failure to separately assess subconscious discrimination in a direct race discrimination claim was in fact an error of law.
On 1 June 2023, the Employment Appeal Tribunal determined that there were no facts from which it could determine that the Department for International Trade had acted on the basis of stereotyping or assumptions based on Ms Kohli’s Indian origin; there was no error of law.
The Employment Appeal Tribunal also determined that the Employment Tribunal will consider the issue of subconscious bias in line with the facts of individual cases and there is no requirement to separately and exclusively consider bias in every case.
What does this mean?
This case, whilst not ground breaking, is a reminder that in discrimination cases, the motivation of the alleged discriminator is a live question for the Employment Tribunal. It is, on the basis of this judgement, plausible to expect the intention of the alleged discriminator to be explored as part of the wider question of discrimination.
As an employer, it is key that you are also aware of the motivations of decision makers in the organisation. If an internal complaint is made suggesting bias, reasonable steps should be taken to consider this. Has employee A been passed over for promotion as a woman with childcare responsibilities, or is there a genuine material reason for the promotion being afforded to a colleague? For example, employee B has longer service, generates more profit and has a more adaptable skill set.
It is important to be alive to the potential of bias, have adequate policies and procedures, and provide suitable and effective training for all staff. This not only makes for a more pleasant work environment but will likely add further protection for an employer if a claim is made.