Are You Being Fair? How to Guard Against Unconscious Bias As An Employer

While most people do their best to treat people equally and try to avoid making judgements or assumptions about others based upon the way they look, dress, their age, their sex and their educational achievements, human beings are programmed to do just this.

Making these subtle assessments about fellow human beings is, in part, how we negotiate our way around our world, and how we make choices and interact with others. 

Given that we are all prone to unconscious bias, it is unsurprising that the concept of unconscious bias in the workplace – and the possibility of it leading to a sticky legal case on the grounds of discrimination - is an issue that keeps many employers awake at night.

Section 13(1) of the Equality Act 2010 (the Act) states that direct discrimination occurs where because of a protected characteristic, somebody is treated less favourably than others.

The Act prohibits discrimination, harassment and victimisation in relation to nine protected characteristics  - age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The Act sets out an employer’s legal duty to avoid discriminating against a potential employee, whether at interview or selection stage, or while they are an employee. 

There are many things employers can do to mitigate the risks of action against them on the grounds of bias, and to mitigate the risk of any of their employee's careers being stymied by any bias. 

Bear in mind too that if an employer unintentionally overlooks the skills of one or some applicants or staff members because of their sex, age, race, or even mode of dress, body art or postcode, they are potentially undermining their own business by ignoring their talents. So it is in everyone's interest that unconscious bias is tackled head-on.

An employer should be seen to be doing all they can to lessen any risk of unconscious bias affecting management decisions and employee’s or interviewee’s progression by:

• Considering the wording of job advertisements carefully. Be aware that asking for a ‘young, dynamic sales person’ might be problematic, so instead, focus upon the skillset rather than the age or social group that you think might possess these skills. The Equality and Human Rights Commission has published a good practice checklist to help advertisers get it right.
• Ensuring  the management team is aware of the biases or actions which may leave the company open to a discrimination claim by providing training on equal opportunities and harassment. 
• Ensuring the whole team is aware of what unconscious bias is and the subtle ways it can manifest itself. An employer is vicariously liable for the acts of its employees during the course of their employment, with employees being personally liable too. The employer will only escape liability if it can show that it took all reasonable steps to prevent its employees from committing acts of discrimination or harassment, for example, by reminding employees of relevant policies outlining what type of behaviour is not acceptable and ensuring that any discriminatory behaviour is addressed through its disciplinary procedures. 
• Taking time to make choices regarding recruitment or progression, and questioning themselves about any possible bias on their part before going ahead with those decisions.
• Recording the reasoning behind HR decisions.
• Making it a habit to focus on the positive behaviour, attributes and strengths of staff. This way an employer will be equipped to make sound judgements based upon fact rather than supposition.
• Making sure they have written and freely available policies and procedures in place as an established guidebook to help managers make key decisions.

There are an increasing number of incident's being reported in the media of employers and employees disagreeing about whether visible tattoos are acceptable in the workplace. This is an interesting issue. Tattoos are not on the Equality Act’s list of protected characteristics, but it is important to consider possible challenges on the grounds of a breach of human rights.

An employer can legally establish a dress code for their organisation and if this dress code does not allow for tattoos, an employer can request that they are to be covered.

For detailed advice on Employment Law issues such as discrimination, contact us on 03333 208644 or email law@jcpsolicitors.co.uk