What steps can we take to avoid sub conscious bias being a factor in our decision making?
There has been a significant amount of press coverage talking about institutional racism within the NHS not only in terms of the treatment of patients but also in terms of the low representation of ethnic minority staff in management positions. Whilst tackling that issue is beyond the brief here, it is important to recognise that sub conscious bias can, regrettably, play a part in decision making processes. An Employment Tribunal will explore a alleged discriminator’s conscious and sub conscious decision making and working in an environment which has not set out sufficient controls to avoid such sub conscious stereotyping places someone at a greater risk of being discriminated against.
In the context of the issues we are addressing here, i.e. risk assessments around BAME staff, as we have stated above, it is essential that BAME staff are represented at all levels in the discussion. Trusts need to be mindful that BAME are underrepresented in management positions.
BAME staff need to be included in the dialogue and need to have a safe place where they can challenge decisions that are being made in relation to them. There needs to be accountability in the processes applied. Meaningful conversations need to happen and concerns should not be dismissed.
Related FAQs
If the duties are so fundamentally different from their contracted role, then yes. For example, if you are asking a frontline clinical member of staff to undertake administrative tasks in another area, then this will be a fundamental change to their terms and conditions for which you need their consent.
If there is a minor alteration to their duties, or the clause within their contract is wide enough to cover their amended duties, then arguably to do not need their consent but best practice would be to obtain their agreement.
Many employees require flexible working now more than ever. That could be reduced hours, working from home, reduced days, etc. Be careful to act fairly when considering these requests as they can be a discrimination claim in the waiting.
A flexible working request is a request for a permanent change to the contract of employment however to encourage a greater take up during this difficult time, you can agree this on a temporary basis.
Aside from the CBILS Scheme, the Government have, or are in the process of, implementing several different schemes to support businesses financially through the Covid-19 outbreak.
- Integration:
- Is the individual held out as being employed by the business by having a company email address, uniform, how would they introduce themselves to customers?
- Exclusivity:
- Is the contractor restricted from working for other organisations without the consent of the end user client?
- Length of engagement:
- Is the contractor engaged to work on a specific project for a defined period? Or are they engaged for an indefinite period with no reference to a specific task or project?
- Pay:
- Are there regular fixed payments or is payment on completion of specific task or commission based? Is the contractor entitled to benefits or bonuses?
- Facilities:
- Does the contractor provide their own equipment and materials to provide the services?
- Financial risk:
- Is the contractor personally responsible for any loss arising from their work in performing the services? Will they have to rectify unsatisfactory work at their own time and expense? Will they have the opportunity to profit from the success of a project?
Failure to comply with the collective inform and consult obligations could impact on the fairness of any dismissals – see next question. In addition, a Tribunal can award a protective award of up to 90 days gross pay for each affected employee. The purpose is intended punish the employer for not complying with the obligations, not to compensate the employee for their individual financial loss.