Before you read any further in this article, imagine you are going to a business meeting with a company you have never heard of before. Quickly, close your eyes and picture their CEO.

Was the person you imagined a man? Bonus points if they were also white and wearing a suit.

If they were, you might have just seen an example of unconscious bias in action. Don’t worry – that doesn’t make you a bad person and you aren’t going to be banished to the stocks for the rest of this article for everyone else to throw rotten fruit at.

Unconscious biases are a phenomenon that virtually everyone will experience, often without knowing about it (hence “unconscious”).

What matters, particularly in an employment law context, is how you recognise those biases and stop them from having negative effects on the way you work.

SHAPES AND SIZES

Unconscious biases can come in all shapes and sizes. Generally, though, they will have their root in one of a handful of common psychological ideas about how we fill in the gaps when we lack information.

The crux of a bias is that we prefer one outcome, position or person over another, without having an objective reason to do so.

Sometimes we might fall back on stereotypes or their less sinister but equally dangerous cousin, statistics.”

Sometimes, like in the example above, we might fall back on stereotypes or their less sinister but equally dangerous cousin, statistics.

After all, statistically (for better or for worse) the majority of current CEOs are probably white men – as of 2023 there were more FTSE 100 CEOs who were called Andrew or Simon than women.

THE TRAP

It is easy to fall into the trap of defaulting to that image when we are asked to consider a CEO we don’t otherwise know about.

This is why my prompt referred to a company you have never heard of – relying on factual information can help to defeat biases and given free rein to think, you might have landed on Deborah Meaden or Paula Vennells (depending on whether your TV viewing last night was Dragons’ Den or Mr Bates vs The Post Office).

Another frequent bias is comparison with ourselves. Nobody likes to think of themselves as a bad person, and as a result, we are more likely to think positively of people that share traits with us and more likely to think negatively about those who are different.

These shared traits can also include shared opinions, such as with confirmation bias – the idea that you are more likely to believe or agree with something because it aligns with your own personal viewpoint.

HALO EFFECT

These biases can be complex, too – for example the halo effect, which involves preferring one person over another in context A because you already have a positive impression of that person from the unrelated context B. Perhaps it’s no wonder that these biases are unconscious if they can be this complicated to even spot in the first place.

But if everyone suffers from biases and most of the time we do not notice them kicking in, why is that a problem?

POSSIBLE ANSWERS

There are two possible answers to this question. The first, more positive answer, is that being able to act without your decision being affected by bias helps to create the most efficient, meritocratic environment possible, where the only factor that matters is how good a person or idea is for the situation.

The pessimistic counterpart to this is that access to opportunities for employment, advancement and personal development are conferred only by those who already benefit from those opportunities themselves, and historically, access to those opportunities has not been handed out on anything remotely approaching an equitable or meritocratic manner.

That is a long-winded way of saying that white male CEOs will, statistically, have a slight tendency over time to replace themselves disproportionately with other white male CEOs.

EQUALITY ACT 2010

This is where the law, more specifically the Equality Act 2010, comes in to rectify some of these ingrained issues. And as is so often the case with the law, we can’t go over it and we can’t go under it. Oh no, we’ve got to go through it.

The Equality Act prohibits discrimination based on any of nine protected characteristics, ranging from age through to sexual orientation. It is not possible to be “neutral” in relation to a protected characteristic (either you have it or you do not), and so when we are unconsciously judging people based on how similar they are to us or what society thinks of them, we can be unwittingly making decisions based on whether someone shares our protected characteristics or not.

Name bias is where discrimination based on a protected characteristic can slip in via the back door.”

Name bias, for example, is a common bias where discrimination based on a protected characteristic can slip in via the back door. Various studies have shown “English-sounding” names being statistically preferred in recruitment exercises even when qualification for the role is otherwise equal.

Even if not done with malicious intent, peel back the surface and suddenly “English-sounding” becomes shorthand for ethnic or national origin – part of the protected characteristic of race. Therefore, someone rejecting a non-English sounding candidate in favour of an equally qualified English-sounding one could potentially open themselves up to a claim of direct race discrimination, if a Tribunal was satisfied that the decision was made because of the candidate’s name.

DIRECT DISCRIMINATION

Importantly, unlike other forms of discrimination, direct discrimination (treating a person more negatively than another because of a protected characteristic they have) has no defence. Get it wrong, and there is an immediate risk of liability, legal costs and bad PR. Unconscious biases can also open the door for other discrimination issues: indirect discrimination, for example, occurs where you have a blanket policy or practice that affects people with a particular protected characteristic worse than others – easily done where the person setting the policy has an unaddressed preconception about a certain group of people.

So how can you weed out unconscious biases before they cost your business a lot of money?”

So how can you weed out unconscious biases before they cost your business a lot of money?

The first way, identified above, is to look at the information used to make a decision, and encourage the accumulation of as much relevant information as possible before deciding.

The flipside to this is to remove as much irrelevant information as you can too – to return to name bias, the solution that many employers have deployed is to use nameless CVs. A person’s name will almost never be relevant to their professional capabilities, and getting rid of that detail entirely prevents you from subconsciously leaning on it in making a decision.

DIVERSIFY DECISION MAKERS

Another method is to expand and diversify your pool of decision-makers. Having one person making a decision makes it very likely that their biases may come into play; having two or three or more can immediately nullify this unless your decision-makers all share the same biases.

Lastly, training can often prove valuable in challenging the default biases and assumptions that employees may hold. Unconscious bias training can be provocative and uncomfortable, as it may challenge some of the core ways that people think and how they regard themselves.

However, done properly, training can force your employees to give proper thought to why they are really making particular decisions and drive out those inefficiencies that can otherwise be left to fester in dark corners, unaddressed.

Because after all, once you realise there is a bias in the room it is pretty difficult to simply forget it’s there and leave it alone.

Chris Deeley is an employment associate at JMW Solicitors