In 2019, discrimination is rarely overt or deliberate.  As a society we have come a long way from the ‘No Blacks, No Dogs, No Irish’ signs of decades past.  But conscious intent is not necessary for unlawful discrimination to occur.  We all have unconscious biases based on stereotypes and prejudices.  We may not always realise our biases, but we do need to be aware that biases related to protected characteristics such as age, sex and gender can give rise to unlawful treatment.

In the UK, under the Equality Act 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  In a discrimination claim, it falls to the Tribunal to consider the reason why the claimant was treated less favourably.  In other words, what was the conscious or subconscious reason for the treatment?  This requires the Tribunal to undertake an enquiry into the mental processes of the alleged discriminator.

As a reminder, the burden of proof lies initially with the claimant, and then shifts to the employer where the claimant shows a ‘prima facie’ case of discrimination.  If the claimant can establish a sufficient difference in treatment then there is likely to be a prima facie case of discrimination.  The alleged discriminator will then need to show a cogent reason for its actions.  Where there is no overt evidence of discrimination, the Employment Tribunal is entitled to draw inferences from the surrounding facts in order to conclude that unlawful discrimination has taken place.  The relevant protected characteristic need only have a material influence on the relevant treatment in order to be unlawful – it does not need to be the only or even the main reason for the treatment.

Whilst Tribunals are unlikely to infer unconscious bias too willingly, the case law suggests that unexplained and unreasonable behaviour or hostility may make the burden of proof difficult to discharge, without a genuine, non-discriminatory explanation for the treatment.  In the recent case of Tywyn Primary School Governing Body v Aplin, the Employment Appeal Tribunal held that a disciplinary process into a gay headteacher’s private life (namely, his having sex with two 17 year old boys he met on the app Grindr) was tainted with unconscious bias, because the investigating officer had displayed a striking lack of objectivity, including assuming that child protection issues were involved despite a local authority investigation concluding they were not.

What does this mean in practice?

All staff should receive regular training on unconscious bias in the workplace, so as to increase awareness and tackle the issues that such biases can cause.  This training should sit alongside policies and procedures which limit the influence of individual characteristics and preferences on decision-making.  Staff should also be encouraged to record all key decisions and how they were reached, including a justification for the decision on the facts/evidence.  Such measures should assist in tackling the issues which unconscious bias can create and are best put in place as part of the organisation’s wider diversity initiatives.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Employment and Labor practice group.