Unconscious Bias: racial discrimination in the FCDO

A civil servant named Sonia Warner was recently found by a Tribunal to have been the victim of unconscious bias and racial discrimination in her workplace.  Dr Chiy is very proud to have supported Warner in her case and to have contributed to the positive result which was eventually achieved.

Warner had been employed as a civil servant for 33 years, with an unblemished track record, and had worked for what is now called the Foreign, Commonwealth and Development Office (FCDO) since 1988, when she was accused of having an inappropriate relationship with an employee of a charity receiving UK funds. Her claim for direct race discrimination under sections 13 and 39 of the 2010 Equality Act related to the handling of the subsequent disciplinary process against her. The general theme running through the claims brought by Sonia Warner is a consistent withholding of information from her, and the simultaneous workings of a distrustful attitude towards her and a dismissive attitude towards gathering proper evidence to justify such distrust. Especially alarming is the dismissal of Warner’s concerns over her safety when she realised that she was being watched at her home by Dr Udy Okon, the Executive Director of YAF, the charity concerned.

Something I found particularly disconcerting myself was that Alex Stevens and Gail Warrander described Warner as ‘hostile’ and ‘aggressive’, and elevated the issues from Serious Misconduct to Gross Misconduct, in response to Warner trying to defend herself. As it transpired, this was largely because Warner’s communications were ‘lengthy and therefore no doubt difficult to absorb and deal with’ for Warrander, who ‘was under a degree of stress as a result of work pressure at the time’ – however, as the Tribunal goes on to state, ‘someone who is accused as the Claimant was of serious misconduct on three counts will normally seek to defend themselves, sometimes at length.’ The idea that such attempts to prove one’s innocence could be described as ‘hostile’ is highly unnerving, and has racial undertones in its stereotyping of black women, as the Tribunal also notes.  The fact that Warner sought to challenge the views of white colleagues increased the harshness of their attitudes towards her and ultimately affected the severity of her punishment.  This is why many people caught in this kind of situation do not challenge the accusations levied against them; they fear being crushed under even more.

The unanimous judgment of the Tribunal was that the FCDO contravened the Equality Act 2010 by directly discriminating against the Warner because of her race contrary to sections 13 and 39. In its comments, the Tribunal stated that Warner ‘was treated with an unwarranted degree of suspicion’ and that the explanation for this from the FCDO ‘did not adequately explain the degree of unfairness and unreasonableness in the treatment and we infer that the missing part of the explanation is the claimant’s race.’ These are issues especially important to us at DJC, as a small business committed to equality. We consider this to be a landmark ruling, because it should encourage employers and HR departments to be more mindful of unconscious bias in future. As Warner says, ‘unconscious bias is a real barrier to fairness and equality’, but it is also, as her lawyer Amanda Hodgson notes, ‘very difficult to prove at trial.’[1]

[1] Quotes of Warner and Hodgson lifted from this article by the Guardian: https://www.theguardian.com/politics/2021/nov/30/fcdo-racially-discriminated-against-black-senior-civil-servant-tribunal-rules. All other quotes taken directly from the Tribunal’s judgment.

Interview with Dr Paul Chiy

Read Dr Chiy’s responses to the questions below:

Could you explain why this judgment is so significant? 

This is understood to be a landmark judgement on racial discrimination as a result of unconscious bias, which is the hardest form of racism to prove because there are no overt actions, but undertones and innuendoes which are just as destructive to the victim.  Many black people suffer from this form of discrimination as they go about their lives, but capturing and defining it is the biggest challenge, particularly when such negative attitudes and behaviours have become the social norm.  Firstly, this judgement is significant because it shows that the most insidious form of racial discrimination can be detected, defined and exposed through an Employment Tribunal, but what is even more important is that this detection and zero-tolerance response happens in the workplace.  This requires the victim to have a good understanding of how unconscious bias manifests.  In this case the Claimant was able to articulate how she was perceived by her white male colleagues and why, based on established evidence of how black women were sexualised historically and how this continues to influence mind-sets in the present day. Secondly, the claimant was able the complete the arduous journey which took over two years. This was physically, mentally and financially draining.  Few people would have the tenacity and resilience to complete this course.  This is why this judgement should be seen as a landmark victory for all victims of racial discrimination because it has given voice to the voiceless, strength to the weak, and faith in the integrity of our justice system to the marginalised and disenfranchised.  What was viewed as impossible by many victims was made possible through this judgement. Thirdly, it exposed that the Foreign, Commonwealth and Development Office (FCDO) has work to do.  It is not the opinions of those in the cosy corridors of Whitehall that matter, it is the opinions of those who host UK diplomats and other overseas staff in their countries, where the majority of the populations are black.  For example, this incident of racial discrimination happened in Nigeria which is the most highly populated black country in the world.  If this is how staff based to Africa treat black colleagues, what must their opinions be of the black people whose countries they dwell in? Is this a reflection of the UK’s foreign policy? What is clear is that for the FCDO to be seen as a force for good in the world, which I believe is its noble ambition, it must first respect the diversity of its own staff within its own corridors.

Why is this judgment important to you?

This judgement shows the potential to gain progress in the fight for racial justice. It moves us from talk to action. This is important because the fight for racial discrimination is lagging behind the fight for progress on tackling discrimination against the other protected characteristics. This judgement highlights the shortcomings in the government stance on unconscious bias and critical race theory. It points to the need for government leaders to set aside entrenched personal opinions for the credibility and integrity of the UK civil service and to effectively represent all, rather than just some citizens.  Finally, those who seek to denigrate black females have seen how Sonia Warner has taken on the white establishment and won. This provides an excellent role model and boosts the self-esteem of young black women.

What kind of work went into producing the initial opinion and contents for the claim?

Dr Paul Chiy of De Jure Chambers developed the framework for the case which provided the legal basis, the relevant background facts and evidence required to prove the case. This is important as Unconscious Bias is notoriously difficult to prove as it is based on ‘invisible’ factors that shape decision making and influence human behaviour and choices.  This particular case was brought after a QC had opined that the case had no merit. It is therefore a source of some vindication that the initial opinion was upheld by the Tribunal.

What do you think the next steps are in combatting unconscious and conscious bias in the workplace? What can businesses and HR departments do?

We all have conscious and unconscious biases, some more harmful than others. Many employers fail to take racial discrimination seriously despite it being unlawful. It is important to have effective checks and balances which is the role of HR. HR Departments must be able to provide robust oversight and “rein in” potential perpetrators before they do harm. Racial discrimination is also a safeguarding issue because it leads to racial trauma. Knowledge and evidence is needed to understand the impact of this in the workplace in terms of sick leave, low productivity, and slow progression amongst black staff.  This means that HR policies and procedures must be revised to ensure that appropriate safety checks are in place.  This process should be done in an inclusive manner involving vulnerable groups. This also includes ensuring diversity in views and perspectives, rather than just white opinions. In organisations where the workforce is diverse, this white hegemonic approach to business needs only increases the potential for things to go wrong. No employer wants this kind of outcome, which clearly could have been avoided, in view of the huge risk for reputational damage.

The Equality Act 2010 has two Chapters. Chapter 1 (Protected Characteristics), identifies nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. These are the characteristics where evidence shows there is still significant discrimination in employment, provision of goods and services, and access to services such as education and health. Ms Warner’s case was brought pursuant to Chapter 2 (Prohibited Conduct: Discrimination), specifically under section 13 which at subsection 1 provides that  ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ The relevant protected characteristic in this case was race and the Employment Tribunal unanimously judged that the Respondent contravened the Equality Act 2010 by directly discriminating against Ms Sonia Warner because of her race, contrary to sections 13 and 39(2)(d). That is, Ms Warner’s employer (the FCDO) discriminated against Ms Warner as an employee of FCDO by subjecting her to the several detriments detailed in the Judgement. 

Author: Isobel Macleod
Email: isobel.macleod@dejurechambersinternational.com

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