422: Do Tribunals need to expressly consider subconscious bias in direct discrimination claims?

In Kohli v Department for International Trade, the Employment Appeal Tribunal (EAT) has rejected an argument that Tribunals are always required to consider whether there has been subconscious discrimination in direct discrimination claims.

Ms Kohli, who is of Indian origin, brought a claim of direct race discrimination against the Department of Transport in relation to her appraisal grade and the failure to offer her various internal roles. The Employment Tribunal (ET) dismissed her claim, having found that there were non-discriminatory reasons for each of the complaints. Ms Kohli appealed on the basis that the Tribunal had failed to expressly consider the possibility of subconscious discrimination.

The EAT has dismissed her appeal, ruling that there was no error of law in the Tribunal’s judgment. Tribunals must always consider the reason for any discriminatory conduct, and this will include consideration of the factors that were going through the mind of an alleged discriminator. However, the possibility of subconscious discrimination does not have to be expressly considered as a separate issue unless there is an inference of subconscious bias. In this case, the Tribunal had found clear non-discriminatory reasons for the employer’s decisions and there had been no suggestion of stereotypical assumptions based on Ms Kohli’s race. Failing to expressly consider subconscious discrimination was therefore not an error of law. The EAT also noted that in any event it was highly implausible that the Tribunal was not aware of the concept or did not consider the issue.

Employers must be aware of the risk of unconscious bias in decision-making on recruitment, promotions, or disciplinary proceedings and ensure that there is a proper written record of why particular decisions were made. This case confirms that although Tribunals must consider the true reasons for an employer’s actions, there is no requirement to make an express finding on the possibility of subconscious discrimination unless this is relevant to a particular case. The extent of the risk of subconscious discrimination and the need for Tribunals to consider it expressly and separately will therefore vary depending on the precise facts and circumstances.