Subconscious discrimination — Should this be taken into account when considering a direct discrimination complaint?

This was considered by the Employment Appeal Tribunal (EAT) in the case of Ms K Kohli (Claimant) v Department for International Trade (Respondent).

Background

The Claimant, who identifies herself as Indian, started her role as Grade 7 civil servant with the Respondent in July of 2019. Between October of 2019 and August of 2020, the Respondent went through a number of changes in its organisational structure.

In May 2020, the Claimant volunteered to be deployed for work related to COVID test kits delivery. The Claimant was advised that the role she was offered as part of the organisational re-structure before the deployment was no longer available due to a lack of operational need in the region; the Claimant was offered alternative roles. Further, the Claimant was awarded grade 3C during her appraisal, which she was not happy with.

The Claimant issued proceedings against the Respondent for race and disability discrimination. The Claimant alleged that amongst other matters, the Respondent directly discriminated against her because of her race by failing to offer her the role she requested and also the appraisal grade that she received.

The Employment Tribunal dismissed her claim. She appealed to the EAT arguing that the Employment Tribunal failed to consider the question of subconscious discrimination.

The legal bit

Section 13 Equality Act provides:

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

The Employment Tribunal held that

“The claimant must establish facts from which a tribunal could properly find that the treatment was because of her protected characteristics and the mere fact of a difference in status and a difference in treatment without, more, will not be sufficient for a tribunal to be able to conclude that the respondent had discriminated.

If the claimant shows facts from which it could be inferred that the respondent has treated her less favourably because of a protected characteristic, the burden of proof shifts to the respondent who must show that the treatment was in no sense on the grounds of the claimant’s protected characteristic.”

The Employment Appeal Tribunal

The EAT held that there was no suggestion that the Respondent had acted on the basis of stereotyping or assumptions based on the Claimant’s Indian origins. The EAT held that the Employment Tribunal considered what the true reasons for the matters complained of were. Although it did not refer to subconscious discrimination in the reasons or consider this as a separate matter, its findings effectively precluded findings that the Claimant’s Indian origins subconsciously influenced the decisions of the Respondent. The Tribunal also found that there were no facts from which it could draw an inference that this had happened. The appeal was therefore dismissed.

Conclusion

This case is a reminder that the motivation of any decision-making is a key question for the Employment Tribunal. The importance of ensuring the transparency of management decisions made during the employee’s life cycle is key to avoid findings of discrimination. It is imperative that the employers keep a clear record of the reasons behind recruitment, appraisals, and any management decisions. It is essential to be mindful of any form of bias and it is important that all policies on equality and diversity are up to date and employees are up to date with equality and diversity training including training on unconscious bias.