‘Unconscious bias’ in internal inquiry led to unfair dismissal of black worker, tribunal found – Spells the need to improve the quality of Workplace Race Investigations

So, screams yet another report of a failed investigation as reported by Haroon Siddique for the Guardian

[https://www.theguardian.com/money/2018/nov/23/former-nhs-trust-manager-unconscious-bias-awarded-1m-for-race-discrimination]

• “The tribunal said his evidence, as a black man of Caribbean origin, was treated with unwarranted distrust and disbelief. By contrast, the tribunal found him to be an honest witness, while identifying numerous inconsistencies and flaws in the opposing evidence.” 
• Mr. Hastings, IT Manager of Kings College hospital NHS Trust, told the Guardian: “It was very hurtful but what was even more hurtful was the treatment from the organisation I’d been with for nearly 19 years. I was devastated. Each part of the process left me even more helpless. This whole thing over three years has taken a tremendous toll on my physical and mental health. It was totally unnecessary.”

This case is just the tip of the iceberg as an example of the disparity in the treatment of BME people across all sectors. It’s only a few cases that ever make the headlines or reach the litigation stage, that is not because of lack of merit but the inherent flaws that get built into them. Many complainants report suffering in silence or being required to turn the other cheek. Over time this creates a psychological toll for BME staff, especially those who find themselves in professions and occupations where they are isolated as the one, the only and often the last of their kind to be employed in a white space. It’s hard enough to get a foot in the door to a decision maker role or a profession but easy to have the rug pulled from beneath your feet.

Our much beloved NHS is a major employer of BME staff, yet it and other organisations need to seriously up their standard of investigations into allegations of racial discrimination. The same applies to increasing the skills to deal sensitively with such concerns at the informal stage before matters escalate. Currently, there is a deficit in the capability of the homogenous HR and Leadership community to comprehend the lived experience of BME employees that is not their own experience of working in the same organisation. Whilst mediation could potentially assist such cases, the empirical evidence is lacking despite some providers treating it as a silver bullet for all employee disputes, even race discrimination without setting out the limitations of mediation. Especially in the context of 97% of mediators being white and the issue of individualising such a sensitive matter and thereby concealing the structural and systematic nature of discrimination and the collective accountability for addressing it.

As someone who has been involved in seeing racial allegations all the way from the informal to formal stages from different perspectives; I feel there is a need to review our approach with honesty, however, uncomfortable this may be. The simple truth is more HR practitioners and so called ‘inclusive’leaders need to get comfortable with discomfort, as has been demanded of their BME colleagues for decades.

Being inclusive leaders or advisors to such leaders is more than an intellectual exercise in purporting to be aligned to the Diversity and Inclusion agenda for PR purpose. You need to be mindful of both your macro and micro interventions and to listen to a perspective that is different to yours. It takes skill to listen like you are wrong. Repetitive experience of listening in this is way is the only way to build the resilience needed to have difficult conversations with resisters as well as complainants, so you can develop a momentum to change the daily lived experience of BME people.

Voluntary appeals and platitudes about being champions of Diversity and Inclusion; such as prematurely rushing to accept the numerous D&I Awards on offer while the reported lived experience of BME’s does not change except for a few exceptions is starting to ring hollow.

These cases of race discrimination do not arise without reference to a wider societal and historical context. When you have politicians like Amber Rudd on her return to the fold dismissing the recent UN report about the negative impact of austerity and levels of poverty in the UK, because she does not like the ‘tone’ of the report, you know we have a systemic problem of denial, especially in relation to people with disabilities, women and BME communities. This is despite PM Theresa May’s launch in 2017 of her racial disparity website providing statistical evidence to her own government departments to do better. Our public institutions should be beacons for the private sector.

It’s a cop out to keep referring to failures as ‘unconscious bias’ or‘complexity’ as an excuse for why solutions are not achievable ‘overnight’.The ‘overnight’ claim is frequently touted as the flag of the privileged to placate their peer group in code that the issue is being kicked into the long grass. Hence, here we are still talking about race fifty years after the original anti-discrimination legislation was enacted. The solutions to racial disparity and the inequality experienced by other groups are in fact very simple – just replicate what you are already doing for the privileged – no ‘special treatment’ is required nor being asked for as is often assumed when complaints are raised.

Ultimately, HR Advisors and leadership need to become comfortable dealing with discomfort about themselves and their organisations. Stop hiding behind the PR platitudes – people are intelligent enough to read between the lines and behind the spin. Individuals never forget the feelings generated by mistreatment related to matters of identity, long after they have tried to forget the details. That’s because it goes to the heart of their very being and belonging.

The privilege of being believed and given empathy because someone looks and sounds like you are a real advantages but a serious impediment when it is denied to those different from the norm comparator group. There is increasing doubt this is ‘unconscious’. Sadly, it is masked by learnt socially desirable responses and defensive deflection tactics. We need to recognise when we and others are deploying these tactics and call them out, so we can be actively mindful of their corrosive effect, regardless of our intentions.

Too often complainants of racial discrimination are met with a culture of disbelief rather than in a spirit of openness and curiosity. We claim we are a ‘learning organisation’ but fail to display this in times of crises when we simply default to our base ‘fight or flight’ instincts. This happens not just at an individual level but also at a collective level as evidenced by the numerous empirical studies of racial disparity in treatment researched by Professor Kalwant Bhopal in the Higher Education Sector and Dr Roger Kline in the NHS along with many other reliable sources who have given their pound of flesh to gather the data under peer scrutiny. In fact, it is surprising we are still stuck in generating more and more data that racial disparity even exists. This can only be because there is still a strong body of resistance to the idea that we are not yet living in a post-racial era. Perhaps facts will never convince some people?

Even the mild-mannered, much loved ‘one of our own’, ‘British’ comedians, Lenny Henry is finding it difficult to disguise his ‘impatience’ for change in the TV/Media and Entertainment sector with a forced smile so as not to offend his white TV interviewer or sound like the‘Angry black man or woman’. 

‘#WhiteFragility’has been aptly described by the Author, Robin DiAngelo and is worthy of a read as is ‘Why I’m no Longer Talking to White People about Race’ by Reni Eddo-Lodge and many other writers of this genre. Perhaps in the case of Robin DiAngela’s book, seeing privilege from someone who accepts her privilege with great honesty might resonate more than a black voice saying it and risk being dismissed with: ‘But you would say that, wouldn’t you ‘or ‘Oh no, not identity politics, again!”  When ‘identity’serves the dominant group to maintain its superior position in terms of life outcomes and access to resources it seems to be acceptable. However, when those who are marginalised by their identity (in all its multi-dimensional ways) to complain they are being treated less favourably because of their identity, it is dismissed as ‘identity politics’. This begs the question, why is the pursuit of equality of access to resources to ensure the same life chances more objectionable and offensive than the desire to protect one’s own self-interest using ‘Identity’ in reverse?

The NHS and other organisations need to seriously improve their standard of investigations into racial allegations as well as how they deal with them at the informal stage.

Here are some highlights of some of the essential ingredients for the formal stage based on my experience of being involved during the full continuum of dealing with allegations of discrimination:

• Seeking early opportunities to neutrally assess if the concerns can be dealt with via alternative dispute resolution; but proceeding to formal investigation if it’s appropriate in the circumstances and the complainant wants to go down this route.
• Consider the way investigations are commissioned/framed and how the organisation interfaces with the investigator subsequently to avoid interference to ensure the neutrality of the investigation.
• Be mindful of the way the organisations commissioning an investigator via an outsourced third-party organisation can create the risk or impression of collusion behind the scenes due to back-door access to the investigator via the ‘Client/Case Manager’ who often has a sales skill set not an investigator background
• Ensue there is a full audit trail of all communications and decisions relating to the investigation and be prepared for full disclosure in due course.
• Assess and re-assess risks to the parties’ wellbeing and neutrality of the investigation throughout
• Sign-post the parties to separate sources of support and counselling
• Allow the investigator the freedom to set appropriate terms of reference to ensure proper lines of enquiry and to avoid the de-scoping and fragmentation of allegations and supporting incidents without transparent and fair criteria being applied.
• The terms of reference should make clear the roles of the different parties and the methodology that will be used to gather relevant information to support or refute the allegations in order to make findings of fact to reach balanced conclusions.
• Consider the suitability of who is appointed to investigate, namely someone trained/experienced specifically in investigations involving race and its intersectionality with other factors such as gender from an independent perspective. Too many delays occur because organisations claim they don’t know anyone suitable who has not already been involved in the matter or because they deem race or sex discrimination can be investigated by anyone with a managerial perspective as a badge of assumed objectivity.
• The investigator must be able to navigate and explore beyond the formal procedures to observe the informal practices and rituals all parties engage in during such alleged treatment and the way in which they respond to allegations. Often a Complainant’s original treatment is compounded by events during the investigation and hearing process and the way policies and procedures are enacted regardless of the zero-tolerance and normative type statements contained in Dignity at Work Policies and organisational value statements. A ‘Should’ statement does not mean it ‘Is’ so.
• Ensuring the Investigator is using a robust and transparent methodology to conduct the investigation.
• Ensuring the investigator keeps all parties informed of progress and responds carefully to case management issues as they arise, including re-directing matters that should be for the organisation to deal with as part of maintaining the ongoing employment relationship.
• Understanding the importance of the investigator’s role in creating an agreed Summary of Allegations (SOA) of the complex history of the supporting incidents and allegations; The SOA becomes a clear list of the alleged pattern of treatment to be investigated. This also enables any matters outside the scope to be captured in a transparent way for subsequent scrutiny.
• Using the SOA as a guide to then gather relevant information via interviews and disclosure of documents.
• Avoid ambushing the Respondent at interview with questions about complex and historical matters without prior disclosure of the SOA. When a process is unfair to the Respondent it becomes ultimately unfair to the Complainant, too.
• The organisation should facilitate the investigator’s access to full disclosure of all relevant information and witnesses.
• Understanding how to assess the quality of conflicting evidence to make fair, balanced findings of fact to enable the reaching of appropriate conclusions and inferences of racial discrimination; bias and undertone against comparator treatment (actual or hypothetical)
• Capturing the reported impact of the alleged treatment
• Understand the importance of subsequently conducting fair internal hearings to enable the reaching of fair and balanced outcomes based on the investigation report or further enquiries, if appropriate.
• Managing appropriate disclosure of the investigation report and supporting documents to the parties. This should ensure fair representation of their responses, challenges and formal appeals. When appeals simply ‘rubber stamp’ an earlier decision without making transparent how either was reached it is a sure way to ensure the matter proceeds to an ET claim. Even if such a claim turns out to be misconceived, it is often due to the inclusion of elements that are essentially a breach the ‘Psychological Contract’. However, the failure to deal with such matters via internal processes is a missed opportunity given internal processes have greater scope to achieve wider resolution outcomes. Parties often fail to appreciate that litigation has its limitations as to what it can deal with.
• Ensure there is a transparent methodology, criteria and case for assessing whether any allegations have been made maliciously or vexatiously. The standard should be high to avoid turning the tables on the Complainant or creating a victimisation claim.

Failure to follow the basic principles of fair investigations simply adds insult to injury to Complainants and Respondents. A poor investigation stops organisational learning about how to dismantle structural and cultural barriers that perpetuate racial disparity in both representation (Diversity) and treatment (Inclusion). Unless we can significantly improve the standard of investigations and skilfully deal with racial concerns at the informal stage, we will simply keep repeating costly mistakes in investigations and perpetuate less favourable treatment of any marginalised group through discrimination.

I expect levels of racial allegations and ET claims for racial discrimination to increase in this Brexit/austerity era. This is due to the failure of our politicians and leaders to provide a positive case by personal example and the failure to dismantle structural barriers that create conditions for scape-goating immigrants and foreigners to deflect attention from their own failures. The next generation of BME are increasingly more ‘woke’ to the historical and current factors that perpetuate racism; accordingly, they are less willing to be as tolerate and silent as their parents and grand-parents who arrived in the 1950’s to 1970’s.

I would urge employers to audit their processes and practices from the point of view of the lived experience of all the parties involved in such disputes to get a full 360-degree view of the dynamics, rituals and practices that get deployed. When we better understand our own and others’ contexts, we are better able to change the narrative in a meaningful way for all parties in a progressive manner.

#NHS #Racism #Mediation #FirstOnlyLast #WorkplaceInvestigations #DiversityInclusion #WhiteFragility #Immigration #Immigration #EmploymentTribunals #HR #Respect @KalwantBhopal @rogerkline @LennyHenry @renireni

Author: Safia Boot

Twitter: @respectatworkuk

http://www.respectatwork.co.uk

© Respect at Work Limited

First published 24-27 November 2018 Linkedin