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Subconscious discrimination – to what extent do Tribunals take into account our unconscious bias?

Unconscious bias – it’s natural so when can it become a problem?

Everyone has unconscious biases. The brain receives information all the time from our own experiences and what we read, hear or see in the media and from others. The brain uses shortcuts to speed up decision making and unconscious bias is a by-product. There are times when this sort of quick decision making is useful, for example if faced with a dangerous situation.

There are times however when unconscious bias can cause unnecessary risks, especially, as tribunals have found, during the employment cycle. Whilst individuals are either too scared or too preoccupied to admit to such bias, case law has shown us that it does occur and can influence decisions in recruitment, promotion and performance management. It could be deemed discriminatory when the unconscious bias relates to a protected characteristic.

It has long been established that conscious intent is not necessary to prove unlawful discrimination in the UK. It is in the tribunal’s power where there is no overt evidence of discrimination to draw inferences from the surrounding facts in order to conclude that there is unlawful discrimination.

Many cases have since applied this approach in practice. Sedley LJ commented in a leading judgment that ‘very little direct discrimination is today overt or even deliberate’.

A quick overview of the legislation:

Section 13(1) of the Equality Act 2010 (the EqA) states that direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

Less favourable treatment must be because of a protected characteristic. This requires the tribunal to consider the reason why the claimant was treated less favourably; what was the employer’s conscious or subconscious reason for the treatment?

The task of proving a discrimination case (commonly referred to as the ‘burden of proof’) lies initially with the claimant, but shifts to the Employer where the claimant shows a ‘prima facie’ case of discrimination. Once a sufficient difference in treatment is shown there is a prima facie case of discrimination.  Unless the alleged discriminator can show a cogent reason for its actions, discrimination can, and indeed will, be inferred.

Further, a 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.

The facts - Geller v Yeshurun Hebrew Congregation:

A husband and wife worked for a joint salary and were made redundant. Mrs Geller brought claims including direct sex discrimination. The factual matrix was far from gender neutral.  However an ET found that Mrs Geller had not been treated less favourably because of her sex.

The EAT overturned the decision because:

1. Despite facts from which discrimination could be inferred, the tribunal failed to consider subconscious or indirect discrimination. Only if discrimination is inherent to the act complained of is the tribunal released from the obligation to enquire into the mental processes of the alleged discriminator; and

2. Whilst there is no requirement to apply the two-stage test in the burden of proof provisions (section 136 of the EqA) in a mechanistic or formulaic way or even at all, the tribunal’s treatment of the reverse burden provisions in the case was rudimentary at best.

The decision could not stand and was remitted to an Employment Tribunal.

What does this mean for you or your business?

Unconscious bias is natural. It's unintended and it can affect decisions. But it can be mitigated.

Unconscious bias at work can influence decisions in recruitment, promotion, staff development and recognition and can lead to a less diverse workforce. Employers can overlook talented workers and instead favour those who share their own characteristics or views.

Where unconscious bias is against a protected characteristic, it can be discriminatory. For example, if during a recruitment process an employer ignores the skills and experience of a candidate who is a different race than them and appoints another candidate who is the same race, this could be discriminatory.

Conscious thoughts are controlled and well-reasoned. Unconscious thoughts can be based on stereotypes and prejudices that we may not even realise we have. For example, stereotypes surrounding tattoos may subconsciously suggest a person is unlikely to conform and follow rules. Stereotypes surrounding mothers may lead to unconscious bias against women who apply for a role which involves regular travel away from home.

What do you need to be doing now?

It’s always a good idea to ensure that your management team are up to speed with anything that may give rise to an Employment Tribunal claim.  Explain to them the concept of unconscious bias and that this can lead to discrimination without conscious thought or intent; every decision they make needs to be transparent and objectively justified. ACAS guidance helpfully suggests the following:

• Be aware of unconscious bias.

• Don't rush decisions, rather take your time and consider issues properly.

• Justify decisions by evidence and record the reasons for your decisions, for example during a recruitment or redundancy exercise.

• Try to work with a wider range of people and get to know them as individuals. This could include working with different teams or colleagues based in a different location.

• Focus on the positive behaviour of people and not negative stereotypes.

• Employers should implement policies and procedures which limit the influence of individual characteristics and preferences.

If you need any further or more specific advice, please do not hesitate to contact our Employment team, who will be happy to help.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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