Unconscious bias played a significant role in the employment tribunal case of Mrs H Grant vs Buffery & Co. Ltd. The sex discrimination case is centred around Mrs Grant’s dismissal and the perception of her role as a mother.
Unconscious bias is sometimes called ‘implicit bias’. It is the view or belief an individual holds which is outside the individual’s conscious awareness and control. It affects everyone.
Unconscious bias is triggered in our brain automatically when we make quick judgements and assessments.
Unconscious bias presents an issue in the workplace. This is due to the fact that unconscious bias causes decisions to be made which unintentionally could be discriminatory.
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Mrs Grant attended an interview for a trainee accountancy role in April 2023. The role was for a firm of accountants owned by its founders, Mr and Mrs Buffery.
The role reported to Ms Thompson. When Mrs Gant applied for the role, Ms Thompson sought to persuade the owners that the successful applicant should not be a person with children.
This was due to Ms Thompson’s belief that a person with children would not have been able to dedicate sufficient time to studying for the accountancy exams.
At the interview, Mrs Grant, the claimant, explained that her husband was intending to take a sabbatical. As a result, she explained she would be able to focus on the new role and fulfil the study requirements.
Mrs Grant was offered the role by the founders of the business.
Shortly after receiving the offer of employment, Mrs Grant asked to reduce her working hours, which the employer accepted. On 15 June 2023, Mrs Grant commenced employment.
Within the first week Mrs Grant requested to work from home on Fridays to avoid the long commute. This was agreed.
Shortly following the granting of the request to work from home on Fridays, a negative atmosphere developed in the office. Ms Thompson, who managed the claimant, joked with Mrs Grant, accusing her of ‘skiving’ Fridays by not attending the office.
At the tribunal Ms Thompson claimed that the trainee was overconfident and not respectful of her professional opinion. Though this was not discussed with the claimant at the time.
On 20 July 2023, Mr and Mrs Buffery had an ‘informal review meeting’ with the claimant. The meeting did not address concerns about the claimant’s work or attitude towards the job.
Instead, the meeting focused on how the claimant would juggle her child-caring commitments with her work. Mistakenly, the notes were not formally written up until after the claimant commenced her claim against the employer.
Following the July 2023 meeting, the founders and Ms Thompson decided to end the claimant’s employment. The following day Mrs Buffery sent the claimant a dismissal letter, explaining their decision.
“We were prepared to be as flexible as possible to facilitate your employment.
Our experience of successfully training many staff members to qualification over the years (and some unsuccessfully) has led us to conclude that you will struggle to complete the training required to pass the exams.
However, the claimant did not accept the grounds for this decision as fair or even legal. On the same day, she replied to the dismissal letter, saying:
To end my employment because my home life does not suit your model is immoral (and frankly illegal) regardless of whether I am in my probation period.”
Tribunal’s findings
Shortly after the exchange, it became clear that Mrs Grant intended to start legal proceedings for discrimination on the grounds of sex.
Her argument was that she had been treated unfavourably because of her status as a woman and working mother.
Mrs Grant claimed that she has been treated less favourably than a man with children. The courts automatically accept that a female partner is more likely to be the primary carer for children.
Counterarguments, presented by the employer, comparing Mrs Grant’s circumstances to those of a man with a time intensive hobby, were rejected.
The case offers important notes for employers. Employers should be aware that for discrimination cases there is no minimum qualifying service threshold.
The claimant in this case was dismissed with less than 4 months’ service.
Indeed, applicants who are unsuccessful for a role can lodge a discrimination claim.
Employers should be aware of unconscious bias. The judge in this case suggested that Ms Thompson’s unconscious bias around mothers played a role in the termination decision.
Unconscious awareness training and diversity and inclusion training are useful solutions to identify and minimise the risk of unconscious bias playing a role in decision-making in the workplace.
Furthermore, employers should document processes at the time.
At tribunal hearings, contemporary evidence is far more compelling to the panel members than documents prepared after legal proceedings are instigated.
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