Greg Clark, employment associate, examines the potential repercussions and what employers can do to prevent it from happening.

Group of business people in convention center, coffee break.

Unconscious bias can be a systemic issue in the workplace which only reveals itself when sets of data covering long periods of time are reviewed. For example, a company might review its recruitment data and find that it is recruiting a disproportionately high number of people from a certain demographic. Nobody is consciously thinking, “let’s hire this demographic deliberately”, but the data proves that it’s happening.

Sometimes, however, individual employees will raise a complaint of unconscious bias. For example, they might say that the chair of a disciplinary hearing found against them because the chair was unconsciously biased against the employee.

For employers, this can be a difficult situation. Because of the nature of unconscious bias, it is very difficult to prove that any given individual was unconsciously biased against another. But if it exists, it could taint a disciplinary process and an employee might (for example) face a harsher penalty for misconduct than they should have. Or, perhaps, an unconsciously biased manager might let certain employees off the hook who really ought to have faced disciplinary action.

So, even if it is difficult to establish unconscious bias in any particular case, employers will want to take action. This will allow them to assure an employee raising a complaint of unconscious bias that steps have been taken to mitigate against it.

Preventing bias in a workplace investigation

There are many steps employers can take, but key examples are:

  • Organising Equality, Diversity and Inclusion training. It should include a focus on unconscious bias and be provided by an experienced employment lawyer who can offer in person or online training with managers.
  • Bringing in support if required. If you are worried that any investigation might be biased – or perceived as biased – consider bringing in help from outside the business. A professional HR Consultant specialising in workplace investigations can ensure that the investigation is independent, thorough and credible.
  • Ensure you have robust policies and procedures. Good disciplinary and grievance procedures will have mitigations against unconscious bias built in. Those mitigations are likely to include ensuring that where practicable investigation, decision and appeal are all heard by different people and allowing employees the right to be accompanied.

If you are facing accusations of unconscious bias in your workplace investigation or would like to help prevent bias in the workplace, please contact B P Collins’ employment team at 01753 889995 or email for advice or for bespoke equality, diversity and inclusion training.

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Greg Clark
Jo Davis
Practice Group Leader

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