Natalie James and Joanna Saine – one a current and the other a former employee of London and Quadrant Housing Trust (L&Q) – were overlooked for promotion in 2022.
Though L&Q’s hiring director "did not consciously treat the claimants less favourably because of race," the tribunal panel stated that hiring decisions were based on a subjective view of who would “fit in”, rather than qualifications and job suitability.
Further, L&Q’s hiring manager did not record all of the information provided by James and Saine at interview; and, Judge Gordon Walker explained, L&Q had not proven that the hiring decision “was in no sense whatsoever to do with race".
The judge stated: “Basing recruitment decisions on subjective views, or gut feelings, increases the risk of stereotypes and unconscious bias coming into play.”
“The outcome of this tribunal should be a wake-up call for organisations that have deprioritised or abandoned their equality, diversity and inclusion (EDI) strategies,” said Sarah Kerr, HR technical consultant for the technology business AdviserPlus, speaking to HR magazine.
“An EDI strategy is not a ‘nice to have’, it is a business-critical imperative.”
Kerr continued: “The case highlights one irrefutable truth: EDI must be led from the top. Leaders play an essential role in not only driving inclusive culture but ensuring that the commitment to diversity and inclusion is not merely performative.”
Read more: Charity's racist sick pay policy sent employee to food bank
Unconscious bias is a serious risk for businesses, explained Michelle Chance, a partner at the law firm HFW.
She told HR magazine: “The potential financial risks for employers who are found responsible for unconscious bias claims are severe.
“There is also a business risk, as managers tend to inadvertently hire in their own image, resulting in group think and a limited range of perspectives within teams over time. Where this occurs, the organisation loses out on the many benefits inherent in a diverse workforce.”
To eliminate the risk of unconscious bias seeping into recruitment processes, objectivity is key, according to Chance.
“Employers can counteract unconscious bias in recruitment and promotion processes by ensuring decisions are based on objective criteria applied to all candidates,” she said. “Having several interview rounds involving different interviewers at each stage also helps to limit the potentially biased views of a singular manager tainting the process.”
Read more: The state of unconscious bias in the UK
Kerr agreed that cultivating objectivity is vital for addressing unconscious bias. “Our role as leaders in HR is to guide organisations towards conscious decision-making,” she said. “This means empowering employees, managers and leaders to acknowledge their unconscious biases and equipping them with the tools to make fact-based, objective decisions.”
What else must HR leaders bear in mind when addressing unconscious bias?
“HR leaders should ensure hiring managers keep a paper trail of the process, to reduce legal risks in the event that a complaint is made,” Chance advised. “Records should show that decisions were made based on objective and not discriminatory grounds.
“Businesses should also invest in organisation-wide unconscious bias training. Biases can only be properly addressed when line managers become aware of what their biases are, and how they affect decision making.”
Robust EDI strategies can also help, Kerr reminded. These should not only outline behavioural expectations but also provide specific guidance on recognising and addressing discrimination.
The tribunal awarded James £64,000 and Ms Saine just under £31,000. The Equality and Human Rights Commission provided funding for both cases.
