0370 1500 100

The way in which employers make decisions about their staff can greatly affect many aspects of the business. Unconscious thinking is commonplace whether because of an affinity bias with a particular individual or wanting the euphemistic “right fit” without being able to elucidate what that entails. This can restrict talent and potentially expose the business to risk.

‘All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up.’ (Nagaran; Supreme Court.) The cause, focus and level of these views vary from person to person. However, our daily situations are influenced by unconscious bias whenever we meet or make assessments of others; it's done without us thinking or even realising they are doing it.

Identifying these biases can be challenging and, to some extent, uncomfortable.

How does this affect the workplace?

These biases can lead to a less diverse workforce with employers overlooking more talented individuals for others who share their own views or characteristics. For employers, additional risks arise when decisions, such as those relating to recruitment, promotions, pay rises and terminations are based on preconceptions rather than objective reasons. This can be difficult when the decision is scrutinised and the business has to justify its decision as objective, rational and fair.

Unconscious bias and discrimination

Unconscious bias causes further problems for employers where it suggests the decision was linked to a protected characteristic (age, disability, gender, marriage/ civil partnership, pregnancy and maternity, race and religion, or sexual orientation) under the Equality Act.

Discrimination arises when the basis for a decision is linked to these characteristics. The intention of the decision maker is irrelevant, which is commonly misunderstood. It is not about what the person means but rather how the decision is received and the real basis or underlying reason for the decision or treatment. This can be conscious or unconscious. For example, if during a promotion round an employer overlooks the experience and ability of an employee who is a different gender to them and promotes another employee who is the same gender, this could be discriminatory. It does not matter that the employer may not have intentionally discriminated, what matters is whether the decision can be justified for a reason not related to gender.

Counteracting unconscious bias

Employers can pre-empt these discrimination risks by increasing awareness of unconscious bias and developing procedures to ensure business leaders can justify their thinking process.

The mentality that “it’s unconscious, I can’t help it” should be resisted as it doesn't stand up as a defence. Instead, employers should focus on identifying and challenging commonly held stereotypes within their organisations. This can be done by training and educating employees in respect of diversity and the impact of bias on the business. Employees should be encouraged to develop themselves and analyse their own biases ahead of any decision making. They should also be asked to clarify their rationale or treatment of someone if necessary.

Employers can assist by implementing procedures and templates which limit the influence of an individual's biases. For example, interview feedback forms with the key role requirements assist in dispelling any unconsciously biased decision making.

Where potential biases have been questioned, the relevant individuals should be held to account by an investigation and thorough review of their explanations. Businesses should therefore retain thorough evidence and reasoning for any decisions.

Ultimately, we all harbour our own views and “people preferences”. These are impossible to eradicate completely. Employers can therefore minimise the risks by being proactive in their approach. Analysing existing biases is a good first step in development and likely to increase diversity and productivity. It is also a business investment in minimising risk to defend future claims.

Published: 9 October 2017

Employment Law Update - October 2017

Sign up to receive our monthly employment law update



Key Contact

Melanie Stancliffe