Alerts

Unconscious Bias

Hastings v Kings College Hospital NHS Foundation Trust

Mr Hastings worked for Kings College Hospital as an ICT Infrastructure Analyst. He had a clean conduct record. He was Black and of African Caribbean origin.

On 29 July 2015, Mr Hastings was driving into the Hospital car park looking for a parking space when a white van drove aggressively passed him. Mr Hastings walked over to where the white van was parked intending to take down its number plate to report it to his employer as in his view the driver had driven dangerously in a busy hospital car park and over the speed limit of 5mph. Mr Hastings reported the incident and this was investigated. Mr Hastings said he received verbal abuse from the driver and two other men in the vehicle calling him the ‘C word’ and ‘f****** stupid’. One of the men then stood between Mr Hastings and the van number plate and when Mr Hastings squeezed past him to see the full number plate said ‘careful it doesn’t come off’ which Mr Hastings understood to be a reference to his race and skin colour. Mr Hastings also claims that the driver asked him his name and said ‘that’s not your real name’, implying that he would not have an English sounding name because of his race. Mr Hastings accepts that a ‘war of words’ followed and he swore at the men because he felt threatened. At some point during the exchange, the driver placed his hands on Mr Hastings forearm and he made a move to remove it and in doing so made contact with his face. Mr Hastings denied punching the driver in the face. Mr Hastings made a call to the hospital security team for help. This call was not recorded and no one came to Mr Hastings aid.

At first, Mr Hastings line manager was of the view that the incident was just ‘he said she said’ despite there being reference to ‘violence and aggression’ in the incident report. However, he then received a statement from a third party who was ‘told by contractors’ that Mr Hastings appeared to be the aggressor and the driver the victim. He viewed the CCTV footage and concluded that Mr Hastings has ‘pushed or punched’ the driver. Mr Hastings was suspended by the ICT Director for aggressive behaviour and physical assault. The ICT Director believed there was no alternative to suspension as ‘if he carried on he could have assaulted someone else’. When asked about Mr Hastings clean disciplinary record the Hospital accepted that they had no reason to doubt his honesty and integrity but suspended him in any event. During the suspension hearing, the ICT Director admitted that Mr Hastings had said there was a racial element to the incident, but he had assumed it would be picked up in the investigation led by another manager. This was never investigated.

Mr Hastings was dismissed for gross misconduct; the reason given was physical assault of the driver and one of his colleagues.

Decision

The Tribunal set out that while the allegations of abuse and physical assault could be described as gross misconduct, his employer failed to consider the character of Mr Hastings, the character of the conduct and his evidence. In their closing submissions, the hospital issued the statement that the issue was not whether Mr Hastings was the aggressor but rather that he ‘allowed himself to get into a situation where he ended up striking another person’. The Tribunal set out that if this was the reason for dismissal this suggested that the character of the conduct was not consistent with a deliberate act of misconduct and could not properly be characterised as gross misconduct. They therefore concluded that on the evidence of Mr Hastings, his actions did not amount to gross misconduct.

The Tribunal described the investigation as “fundamentally flawed” with Mr Hastings “interrogated” and the investigatory report “worded in a manner that called into question the veracity of [Hasting’s] evidence.” The Hospital failed to take Mr Hastings evidence into consideration, focusing solely on his conduct. Mr Hastings was assumed to be the aggressor and the ‘white witnesses’ were accepted to be the victims. In failing to investigate the incident fairly, the Tribunal concluded that Mr Hastings was treated less favourably because of his race. The Tribunal found that Mr Hastings was unfairly dismissed and discriminated against because of his race.

Comment

This is a case where the investigation was flawed as a result of the investigating manager’s unconscious bias. The Hospital also failed to follow its own policies and procedures and follow the Equality and Human Rights Commission Statutory Code of Practice.

Our inbuilt biases are influenced by our background, cultural environment and personal experiences.

Employers must be aware of unconscious biases and the hidden preferences they bring to their managers decision making.

Unconscious bias should be challenged in the workplace so that preferences do not influence business decisions such as recruitment, investigations and disciplinary procedures. Employers may consider training senior staff to raise awareness of unconscious bias.

If you have any queries on unconscious bias, discrimination or any other HR queries, please contact the employment team on 01228 552600 or 01524 548494.

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