17 January 2022

In each issue, Nicola Mullineux, senior employment specialist for Peninsula, explores the outcomes of three different employment law cases


This instalment focuses on:

  • unconscious bias race discrimination

  • dismissal relating to self-isolation

  • a development on sexual harassment claims.

Unconscious bias race discrimination                                                                                                                                                                                                                                                                                                                                                                                                             Less favourable treatment of an employee, due to a protected characteristic (e.g., race, disability, sex etc.) can lead to lengthy and costly employment tribunal (ET) claims for discrimination. As such, businesses must implement measures to reduce the risk of discriminatory actions and behaviours happening in the workplace. However, a recent tribunal case shed light on new difficulties, by outlining the possibility of covert discrimination through unconscious bias.

Unconscious bias taints the decisions individuals make, as they form quick, ignorant opinions about people and situations. These opinions are often developed without the person being aware or in control of it, hence the unconscious element of the bias. For example, people are often drawn to others who look and act the same as them, or who have shared life experiences, such as growing up in the same town, supporting the same sports team or going to the same university. Connecting with individuals in this way, especially when recruiting, can mean that one candidate is scored less favourably than another, despite having equal qualifications.

Although this could seem like a minor issue, it contradicts equality and diversity in the workplace.

This was seen in the case of Warner v Foreign Commonwealth Development Office (FCDO), in which the ET had to consider whether a black employee had been treated less favourably than a hypothetical white employee. While no evidence of malice was found, it was deemed unconscious bias impacted the decision of the all-white panel involved in Warner’s disciplinary process.

For context, allegations were made against Warner by an organisation she worked with in her role as senior governance advisor, stating she was in a relationship with one of their employees, which had not been declared in accordance with the FCDO policy. This led to a six-month investigation, during which Warner was disowned and alienated by colleagues. Not once in the investigation process did the panel question whether there was a relationship between the two parties. Instead, the ET found Warner was treated with an unwarranted degree of suspicion, and that assumptions were made about her and minds were closed against her.

Ultimately, the tribunal concluded there was no reasonable excuse for the behaviour of the all-white group who completed the disciplinary process, which was poor and unfair. Comparing her treatment to that of a hypothetical white woman, it was decided that the only reasonable explanation for this happening could be the unconscious bias opinions about her race. It must be noted that, since this is only an ET decision, the outcome is not a binding authority. However, the judgement does provide a good understanding of the stance the tribunal system takes on this matter, therefore making it an important case for employers to remember.

To prevent re-occurrence of such claims, employers should take steps to mitigate unconscious bias in the workplace. Common measures include:

  • management training

  • blind recruitment strategies

  • ensuring there are always two decision makers present at an interview.

These initiatives should be tied into wider policies and procedures relating to discrimination, bullying and harassment. Effective support should be provided to those who raise grievances.

 

Dismissal for breaching self-isolation rules                                                                                                                                                                                                                                                                                                                                                                                                   David Lewis, a forklift truck driver of 23 years in a dry goods warehouse, was dismissed for gross misconduct, following an investigation which found he went into work when he should have been self-isolating at home, as per government guidelines. In this case (Lewis v Benriach Distillery Company Limited), the employee attended work while his son was awaiting the result of a Covid-19 test. This was despite the Scottish government guidance requiring anyone who lived with someone displaying Covid-19 symptoms to isolate.

Lewis believed his son was pretending to have Covid-19 symptoms, saying that he was ‘at it’ because he wanted to skip work for the day and spend time with his friends. He did not believe his son was ill, and said his complaints of a headache and cough were fake. Nonetheless, Lewis took his son to get a polymerase chain reaction (PCR) test to be sure. When the results weren’t returned by Monday morning, Lewis went into work as usual. It wasn’t until the next day the results came back to confirm that the son was Covid-19 positive.

As soon as Lewis was aware of this, he contacted his manager, informing him of the need to take time off work to isolate. He got an email response calling him ‘highly irresponsible’ and ‘reckless.’ Following an investigation, Lewis was dismissed without notice for a serious breach of health and safety policies. Lewis appealed the decision and re-explained his misunderstanding with the situation, but his appeal was denied.

The ET accepted Lewis’ claims he did not believe his son was showing Covid-19 symptoms or that he needed to isolate. It found he would not have gained anything from pretending his son didn’t have symptoms, since he would have been paid in full for isolation periods. It further accepted that Lewis would not have attended work if he believed his son was genuinely suffering from Covid-19. As such, the employment judge upheld his claim for unfair dismissal and ordered the organisation to pay him £23,978.19 in compensation.

This case highlights the importance of avoiding jumping to conclusions when determining the outcome of disciplinary matters. The organisation was right to invite the employee to an investigation meeting as soon as it discovered he may have been in breach of self-isolation rules. However, had they carried out an effective evaluation of background factors relating to the case, and took time to fully understand the employee’s version of events and explanations, they may have been able to avoid tribunal claims being raised. When dismissing an employee with over two years’ service for gross misconduct, it’s imperative for employers to show they have considered lesser sanctions and can justify why these were not feasible. The three key tests to apply in such situations include looking at:

whether the employer genuinely believed the employee was guilty of the alleged misconduct

if the employer had genuine grounds for this belief that they were guilty

if a reasonable investigation was carried out before making a final decision.

 

New development on sexual harassment claims                                                                                                                                                                                                                                                                                                                                                                                                A recent ET case, Austin and Newton v Royal Borough of Kensington and Chelsea, sheds new light on sexual harassment claims. In this case, the claimants were working together on the council’s response to the Grenfell Tower fires. They were gossiped about in the office for arriving late and leaving early together, going out for lunch and taking ‘unnecessary’ trips to the tower. Inappropriate comments were made by colleagues about what they were doing while out of the office, including unfounded allegations of them getting a hotel room. The claimants found these comments to be derogatory and offensive, which resulted in them raising a claim for sexual harassment.

The tribunal agreed, finding the remarks by colleagues to be unwanted conduct of a sexual nature, because they referred to alleged sexual activity. The ET conceded that the purpose of the comments probably related to others wanting to vent their frustrations about the relationship between the claimants. However, the conduct, once the claimants found out about it, had the proscribed effect of violating their dignity and created a hostile working environment.

The employment judge considered the impact the situation had on the claimants individually. It was concluded it would be reasonable for a manager (Austin) to feel that an allegation he was having sexual relations with a subordinate, rather than working, would violate his dignity. Similarly, it was reasonable for Newton to feel the same effects when colleagues invalidly made allegations of her having relations with a manager instead of working.

Previous case law relating to sexual harassment claims focuses predominately on issues solely involving individuals of the opposite sex. Typically, the case background follows a pattern of a senior employee of one sex making inappropriate, unwanted remarks to a junior employee of the opposite sex. However, what’s interesting about this case, is that the misconduct comes from a third-party employee not directly involved in the relationship. As such, employers should pay particular attention to workplace gossip and chatter, where mention is made of two employees having an affair, or any other unconfirmed relationship. Should this happen, employers must take reasonable steps to intervene and shut down potentially offensive conversations.

It is beneficial for businesses to review their policies on sexual harassment, bullying and discrimination in the workplace and assess how aware employees are of such policies. A robust policy is the first step in preventing misconduct, however, organisations should also ensure there is a clear, zero-tolerance attitude towards these behaviours. Similarly, workplace training for managers and workers on how to manage, avoid and report inappropriate actions can go a long way in discouraging all forms of workplace misconduct. So can providing effective support to affected employees to raise any concerns they may have. 


 

Featured in the February 2022 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.