‘…Many people are unable or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim, members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did…’
These words from Lord Nicholls demonstrate that courts and tribunals are alert to the fact that the witnesses they see before them may themselves not always be aware of their own prejudices/preconceptions. Discrimination complaints commonly surface in circumstances where individuals believe that decisions have been made based on stereotypical assumptions rather than facts. As Lord Justice Mummery noted: ‘direct discrimination can occur, for example, when assumptions are made that a claimant, an individual, has characteristics associated with a group to which the claimant belongs, irrespective of whether the claimant or most members of the group have those characteristics.’ In discrimination complaints, once facts have been presented from which the Tribunal may infer that discrimination has taken place, it is for the employer to prove/explain why the Tribunal should find that no discrimination has taken place.
Defending a potential discrimination claim
The best starting point for defending any potential discrimination complaint in an employment tribunal is for the employer to demonstrate that it has provided on-going equal opportunities/diversity training to all its staff. Indeed, an employer who has done this may even escape liability all together for an employee’s act of discrimination or harassment against a colleague if it can demonstrate that it has taken all reasonable steps to prevent its employee from committing a discriminatory act. Given that providing on-going diversity/equal opportunities training is a potential ‘get out of jail free’ card, it is surprising how few employers invest in regular diversity training as part of their regular staff training. An equal opportunities policy without training is not worth the paper it is written on. The first question in any cross examination in a discrimination case is nearly always to ask what diversity/equal opportunity training the decision maker has undertaken? A negative response gives the employee’s representative the golden opportunity to invite the Tribunal to find that the decision maker has subconsciously discriminated.
Investing in training
Whilst equal opportunities/diversity training may involve a modest outlay, this should be weighed up against the potential costs if the business loses a discrimination complaint. Last year the highest discrimination award was an award to an employee of £4,445,023 in respect of a race discrimination complaint. With compensation in discrimination complaints being potentially unlimited, arguably it makes no financial sense not to invest in diversity/equal opportunities training. Employees who have benefitted from such training are much less of a risk to the business. Successful and sustainable businesses are only ever as good as their risk management. Untrained employees are the biggest risk to any business and never more so than in this social networking age where the ‘merge’ between work/home life means that employers can be faced with claims relating to comments/acts out of regular working hours.
Diversity/equality training not only maximises the employer’s position in the event of a discrimination complaint, it can also facilitate conducive working relationships which are the key to any successful business. This is because it encourages dialogue between employees from different backgrounds. Sociologist Charles E Hurst explains that, ‘one reason for stereotypes is the lack of personal, concrete familiarity that individuals have with persons in other racial or ethnic groups. Lack of familiarity encourages the lumping together of unknown individuals.’. These comments could equally apply to the young/old/ those with caring responsibilities/those with none, and so on.
Sources of information to assist with training
There is a wealth of information available for employers who wish to provide their staff with the space and opportunity to reflect on how their life experience may lead them to make automatic (and potentially discriminatory) assumptions in the workplace. In addition to our own diversity training, information is available from Stonewall, ENEI, Opportunity Now, Positive About Disabilities and Race for Opportunity. Race for Opportunity has, for example, online ‘Know Yourself’ unconscious bias taster tool. Similarly, Harvard University provides the Implicit Association Test (IAT) which is a measure within social psychology designed to detect the strength of a person’s automatic associations between mental representations of objects (concepts) and memory. Those who take this test sometimes discover that they are not as ‘liberal’ as they thought.
Opportunity Now and Race for Opportunity have published their 2012 Benchmarking Trends Analysis Report for gender and race. 76 of the UK’s employers completed the Benchmarking Survey representing a combined workforce of 1.3 million. Greater gender and racial diversity occurred in workforces where HR has actively worked to tackle unconscious bias the report said. It found that 50% of employers with higher ethnic minority recruitment rates (where Black, Asian and minority ethnic – BAME- hires were above 15 per cent) provided unconscious bias training for those involved in the hiring process. Meanwhile, only 5% of organisations with lower recruitment rates do this.
“Advantage”, DWF’s Employment online training tools have developed an Equality and Diversity course to help businesses demonstrate proactive compliance with the Equality Act 2010.
Should you feel that your business could benefit from Advantage, please do not hesitate to contact a member of our Employment team.
 Nagarajan v London Regional Transport 1999 ICR 877 HL
 Stockton on Tees Borough Council v Aylott 2010 ICR 1278 CA.
 Hurst, Charles E. Social Inequality: Forms, Causes, and 6. Boston: Person Education, Inc, 2007