Prince Harry’s ‘Spare’: Confusion reigns over unconscious bias?

Is anyone else reading Prince Harry’s new book? Given that, on its release earlier this month (January 2023), ‘Spare’ became the fastest-selling non-fiction title of all time, I can’t be the only one!

The book has caused a sensation for many reasons, great and small — ‘Beard-gate’, ‘Tiara-gate’ and the ‘dog-bowl dispute’ being just a few of the many media talking points! We certainly don’t intend to explore or cast any judgement on those alleged incidents here!

However, as an employment lawyer, one feature of Prince Harry’s narrative that really struck me is its odd and confusing treatment of race discrimination issues and, in particular, the concept of ‘unconscious bias’.

Prince Harry clearly and unequivocally complains that his wife Meghan, Duchess of Sussex has been subject to race discrimination at the hands of the British press and cites many examples to support this claim. However, his position is much less clear when he turns to his own behaviour and that of the royal household.

Unconscious bias in the book – and beyond.

One extract really stands out: Describing his days at Sandhurst military academy, Prince Harry recalls making a video of his unit on his mobile phone and admits referring to a South Asian cadet using an extremely offensive racial slur. He expresses regret about the incident, claiming that he “didn’t know [it] was insult” and that having “grown up isolated from the real world and surrounded by privileges” he believed that the use of the P-word was “innocuous”. He goes on to describe this alleged naivety, and the fact that he did not knowingly or intentionally cause offence, as ‘unconscious bias’.

The concept of ‘unconscious bias’ also featured strongly in the media coverage surrounding the book’s release. In their infamous 2021 conversation with Oprah Winfrey, Prince Harry and Meghan revealed that there were “concerns and conversations” from an unnamed member of the Royal household “about how dark [their unborn baby’s] skin might be when he’s born”. However, in a very recent ITV interview about his memoir, Prince Harry denies accusing his family of racism, instead categorising the alleged behaviour as ‘unconscious bias’. He goes on to the extend the same description to comments made by senior royal aide, Lady Susan Hussey, who was forced to step down from her role after repeatedly asking a black British charity leader where she “really came from”. In his Netflix series ‘Harry and Meghan’, Prince Harry states that there is a “huge level of unconscious bias” in the royal family and that addressing this “is a constant work in progress for everybody, including me”.

Away from the royal spotlight, similar issues have also arisen in the world of sport this month. An FA investigation found John Yems, manager of Crawley Town FC, guilty of an “extremely serious” series of discriminatory remarks and incidents of bullying but, somehow, concluded that he was “not a conscious racist” as “his attempts at jocularity had been thoughtless and misguided, but not malevolent”.  

What unconscious bias is – and what it’s not

The term unconscious bias has come to be understood as referring to the ‘invisible’ factors that shape our decision making and influence our behaviour and choices. For example, we are likely to inherently favour others who look like ourselves, or who come from a similar background and appear to share our values (a concept referred to as ‘affinity bias’).  We are all often tempted to make judgements based on ‘first impressions’, for example attributing the positive characteristics of capability and professionalism to someone who is smartly or conventionally dressed, without really interrogating their skills or experience (the “halo effect”).

Conversely, we may have unconscious negative preconceptions, built up through our own experiences or absorbed from the media or other sources, about individuals or groups who are different (“perception bias”).

The wealth of literature published on this topic stresses that everyone has their own particular set of unconscious biases which, although they may be wholly involuntary, may still influence their decisions and actions.

Taking this broadly accepted definition into account, it is difficult to comfortably badge the words and incidents cited by Price Harry as ‘unconscious bias’. In each instance mentioned above, words have been openly spoken which, on a reasonable objective assessment, could be considered discriminatory. There is no question of unearthing ‘hidden’ influences or unfavourable assumptions, as these have arguably already been laid bare. Prince Harry repeatedly expresses remorse and contrition for any offence caused, on behalf of both himself and his family, and throughout his memoir resolves to learn and ‘do better’. However, no amount of regret, no matter how heartfelt, can change the fact that discrimination may already have taken place.

Unconscious bias and race discrimination: Myth-busting

The first misapprehension to tackle is that language or actions cannot constitute race discrimination if there is no ‘racist’ intent behind them and the perpetrator does not intend to cause offence. The Equality Act 2010 is quite clear that they can.

The legal definition of ‘harassment’, on the grounds of race or any other characteristic protected by the statute, is behaviour which ‘has the purpose or effect of violating [a person’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for [them]’. So even if the ‘purpose’ to cause harm is missing, the definition is still met if the behaviour has that ‘effect’ on the recipient. The ‘effect’ is largely assessed from the recipient’s subjective viewpoint. However, an employment tribunal will carry out an objective balancing exercise, to ‘sense-check’ that the recipient’s perceptions and reactions are not clearly unreasonable. To that extent, the intentions of the perpetrator are largely irrelevant.

It’s also important to examine the other side of the same coin. It is often assumed that behaviour arising from ‘unconscious bias’, in line with the broadly accepted definition, will not be unlawful as it operates ‘below the surface’ and any biases at play may not be ‘operative’ in a decision-maker’s mind. There is sometimes a perception that unconscious biases somehow ‘don’t count’ as discrimination.

In fact, allowing unconscious bias to effect decision making will be unlawful if the bias relates to a protected characteristic such as race, gender, disability or sexual orientation.

For example, looking at race, case law decided under the Equality Act makes clear that the protected characteristic does not have to be in the forefront of a decision maker’s mind for unlawful discrimination to occur. Nagarajan v London Regional transportand others, decided back in 1999, established that an employment tribunal should examine the “reason why” an individual was treated less favourably, taking into account the employers “conscious or subconscious reason for the treatment”.

More recently, Kings College Hospital NHS Foundation Trust was ordered to pay £1m in damages to a former employee after an employment tribunal found that he had been unfairly dismissed and subject to race discrimination. The employment tribunal found that the Trust’s investigation into allegations of aggressive behaviour against the employee (a black man of Caribbean origin) was tainted by unconscious bias, and that his account of events was treated with “unwarranted distrust and disbelief” because of his ethnicity. It found that opportunities to corroborate the employee’s version of events were missed in favour of the “desire for an easy solution” based on erroneous first impressions.

The Equality and Human Rights Commission (EHRC) Code of Practice also emphasises that the relevant protected characteristic does not have to be the only or even the main cause, of any alleged unfavourable treatment. A perception or misconception, which contributes only incidentally to a decision, can still taint that decision with discrimination.

Of course, unconscious bias may operate against other traits or characteristics that are not specifically protected by law and it is of course still useful to identify and address these. For example, although a hiring decision based in part on an applicant’s regional accent will not be unlawful and is unlikely to result in an employment tribunal claim, this particular bias will certainly impact negatively on social mobility and an organisation’s diversity profile.

Tackling race discrimination and unconscious bias at work

The first step to tackling race discrimination at work is, very simply, to ‘call it by its name’. If as a HR professional, you are considering a grievance or disciplinary case and conclude that discriminatory language has been used, it is important to acknowledge this. Consideration of the context in which any comments were made is of course important as part of a full and proper investigation. However, it is important not to shy away from a finding of discriminatory harassment simply because of a lack of intent to discriminate on the perpetrator’s behalf. If you are unsure of how to frame your findings, our employment law experts are available to help you.

Of course, your professional assessment of the perpetrator’s motivation, level of knowledge and other ‘mitigating’ factors might inform your next steps. If you are convinced that it was the perpetrator’s intention to do harm, a serious disciplinary penalty is likely to be warranted. In the absence of intent, a lesser penalty and/or an education pathway might be more appropriate.

Tackling unconscious bias can be a more daunting task. Of course, a useful first step may be to introduce some form of training or testing to enable managers to identify where their unconscious affinities or prejudices might lie. There is some debate as to what extent unconscious bias training actually impacts behaviour, but it will certainly educate managers to recognise any potential biases they may exhibit and, hopefully, to interrogate their own ‘default’ decision making and that of others.

If you do opt for ‘unconscious bias’ training, remember to take care of your decision makers. Managers who are striving hard to act fairly and implement your equality and diversity strategy may be unsettled or upset to find out that they have implicit biases. It is important to implement unconscious bias training carefully and sensitively, so participants fully understand the results and how they can constructively use any learning going forward. It is important that decision makers are reassured that their integrity is not being called into question.

Unconscious biases can hit hardest at the point of recruitment and selection for promotion, so think about what you might change to minimise risks. Ensure that, wherever possible, a number of managers are involved in recruitment decisions and that selection panels are as diverse as they can be. It is more likely that unconscious bias will be challenged if there are a variety of different voices and perspectives in the room. Operating robust and consistent policies across your organisation is also crucial. Objective process frameworks are crucial to minimising the risk of decisions being impacted by implicit personal bias.

Please do not hesitate to get in touch with your usual Weightmans contact for further information or support. While we can all learn a great deal from Prince Harry (such as the finer points of Palace etiquette, or how to pilot an Apache) it might be better to leave race discrimination and unconscious bias issues to the experts.