A recent report from MPs on the Women & Equalities Committee concludes that the talents of more than a million people over the age of 50 who want to work “are being wasted because of discrimination, bias and outdated employment practices” with too many workplaces operating on an “outdated, inflexible model”.
The solution, says the committee chair Maria Miller, is a “mandatory approach, with flexible working being the default from the time jobs are advertised onwards” which will pave the way for an age-diverse workforce.
This is not the first time that “bias” or unconscious bias has been cited as a reason why many people have suffered discrimination in the workplace or workplace inequalities or exclusion on the ground of their protected characteristic. This had been the conclusion of Baroness McGregor-Smith in her 2017 Review, ‘Race in the Workplace’ highlighting that “structural, historical bias” had prevented ethnic minorities, women, disabled people and others from progressing in their careers. The recommendation was for the government to create a free, online unconscious bias training tool.
Earlier this year it was reported that London’s public sector workers from a Black, Asian and Minority Ethnic background received, on average, 37 per cent less pay than their white colleagues. The Mayor of London quickly sought to reassure those workers that steps had already been taken to address the pay gap including unconscious bias training and more measures were planned.
Unconscious biases are the attitudes and views we hold about, say, a person or a group, but which we are unaware of and affect our everyday behaviour and decisions. They are affected by many things including background, personal experiences and culture. Whilst we don’t tend to believe that we hold, or are capable of holding, prejudiced attitudes or views, choosing instead to believe that we are tolerant, accepting and rational, the truth is, we all do. We’re simply unaware of them.
For instance, two years after the London Paralympic Games in 2012 the findings of a DWP survey revealed 68 per cent of the British public felt attitudes to disabled people had improved since the Paralympics. However, in the same year, a study conducted by the Employers Network for Equality and Inclusion found that over one in three people show an unconscious bias against those with a disability, a level of bias that was higher than the year prior to the Paralympic Games.
Employment tribunals are attuned to this issue, recognising that “very little discrimination today is overt or even deliberate” and where there is no overt evidence of discrimination the tribunal will usually depend on what inferences it is proper to draw from the surrounding facts, in the absence of an adequate explanation from the employer, in order to conclude there is unlawful discrimination.
The issue of subconscious discrimination is likely to be one that the tribunals will have to deal with more frequently in the future. With each rise of the State Pension age and with 2 per cent of the working population becoming disabled each year, unconscious biases and their impact are likely to be more keenly felt in the workplace. Employers would do well to consider initiatives such as unconscious bias training that involves awareness-raising and tackling implicit stereotyping as well as simple but effective measures including structured interviews in recruitment and promotion exercises.
Donna Reynolds is a partner with CCW Business Lawyers