Mind Games

David Palmer

I’m a latecomer to the West Wing. I am aware I’ve committed some form of boxset heresy. But I’ve watched the Sopranos and the Wire three times each, so don’t judge me too harshly.

In the West Wing episode I was watching, Rob Lowe’s character (Sam Seaborn), a lawyer, is surprised by the idea that the U.S. would create a law whereby a citizen’s crime would be punished more heavily if there were discriminatory motives.

Sam Seaborn’s views are alien to me. I am (for the time being) a European, with European views. If a person commits a wrong and that wrong is perpetrated because, for example, the victim is female, black, gay or a whistleblower, then it seems (to me) that the wrong should be punished more severely. I take Sam’s point, of course. There is a more than a hint of the Orwellian about policing a person’s thoughts.

And as a UK employment lawyer, I am very familiar with the idea of an employment tribunal being required to examine the thought processes of an employer. Two recent employment appeal tribunal (EAT) judgments touched on this very issue.

Sam would certainly have been surprised by the consequences of the judgments. We have that in common.

The mind of the employerwhistleblowing

It can be problematic for employment tribunals to deal with the thought processes of an employer when there are allegations of discrimination and whistleblowing. It’s an evidential issue – how can a tribunal know what was really in an employer’s mind? Much of the evidential enquiry will focus on the decision-making of the manager in question: was the manager’s decision motivated by discrimination/victimisation, or not?

In the two recent cases, the employment tribunals at first instance decided that managers had not consciously discriminated or victimised. On appeal, the EAT disagreed that there had been no discrimination/victimisation.

A clear (sub)conscious

Geller v Yeshurun Hebrew Congregation concerned the subconscious motivations of a synagogue. Mrs Geller (the claimant) and Mr Geller were employed by the synagogue.

Two matters of dispute arose:

  • Mrs Geller was owed wages for time recorded on her timesheets. The individual with authority to sign off on the timesheets was ill at the time, requiring an operation.
  • A redundancy situation arose and Mrs Geller wanted to be included in the selection pool. Two members of the synagogue thought (consciously!) that she was not an employee because of her working arrangements. Mrs Geller worked on an ad hoc part-time basis, whereas her husband was a full-time salaried employee.

The claimant alleged the decisions made about her pay and employment status were because she was female. The tribunal had to examine the motivation of the synagogue’s managers.

The tribunal found that the synagogue’s witnesses were honest, truthful and reliable. The tribunal concluded that they had not been motivated by sex-related factors. There were non-discriminatory explanations for their conduct towards the claimant, including the medical operation and the reasonable belief that she was a casual worker.

Despite this, the EAT remitted the case to the employment tribunal with an instruction to consider the subconscious motivations of the managers, which the EAT thought could differ from their non-discriminatory conscious thoughts.

Bearing in mind that neuro-scientists think the subconscious mind is in control of around 80%- 95% of our actions, how does an HR department mitigate the risk of a manager with a rogue subconscious – a subconscious employees themselves cannot control? I offer some thoughts below.

Whistleblow your mind

In Royal Mail Group Limited v Jhuti the EAT examined a decision to dismiss an employee by a manager who was unaware that the employee was a whistleblower.

The claimant was a new employee. She alleged to her line manager that another employee had acted in breach of internal rules and that the employer’s regulator would have grounds to take action against her employer. The claimant’s line manager forced her to retract the allegation. Working relationships subsequently broke down as the line manager ensured the claimant was set to fail at her job. The claimant lodged a grievance but it did not result in a vindication of the claimant. Instead, another manager was appointed to review the claimant’s employment. She dismissed the claimant for poor performance.

The crucial fact in this case was that the claimant’s protected disclosure was intentionally concealed from the dismissing manager by the line manager.

The question for the tribunal was whether the dismissing manager had automatically unfairly dismissed the claimant because of the protected disclosure. Logically, the dismissing manager could not have done so if she was not aware of the disclosure. The tribunal dismissed the complaint.

The EAT overturned the tribunal’s decision. The EAT found that, because of the line manager’s intentional concealment of the disclosure, the dismissing manager’s decision was an act of whistleblowing victimisation, even if she could not have known of the details of the disclosure.

It appears to have been central to the EAT’s decision that the line manager was the claimant’s direct manager. Had he been some other employee, it is not clear that the EAT would have reached the same decision.

The EAT judgment does not paint a pretty picture of how the claimant was treated. No doubt, the EAT intended to do justice to the claimant. At the same time, the impact of the judgment is that a manager could automatically unfairly dismiss an employee, despite having no knowledge of the whistleblowing.

This is the sort of judicial precedent that could result in claimants in subsequent cases trying to extend the situations where a dismissing manager can be deemed (in law) to know of things that he or she did not (in fact) know about.

What to think (consciously or otherwise)?

Here’s some practical advice to glean from these cases:

  • How does one show evidence that a person’s subconscious was not deviously plotting discriminatory decisions? The answer: documentation, documentation, documentation. It is what the tribunals will usually rely upon when taking a view about what was really going on in a manager’s head.
  • Everyone has unconscious bias – the automatic and immediate decision-making based on our personal life experiences. In a split second, we can usually tell whether someone is suitable for a job without necessarily being able to articulate why. This is unconscious bias working. Training in the area helps decision-makers realise that this is happening, to pause, and to apply selection criteria, for example, methodically. If a claim does arise, it’s always impressive when a witness can tell a tribunal that he or she is aware of unconscious bias, having been trained in it, and having applied the principles to ensure that his or her decision was bias-free.
  • It is clear now that whistleblowing claims cannot always be defeated because the decision-maker was ignorant of the protected disclosure. The importance of all managers in an organisation being alert to potential protected disclosures or complaints of discrimination, and then treating them seriously and impartially, cannot be overstated.
  • If there’s a whistleblowing policy, use it!
  • HR can assist in mitigating these risks by being vigilant to decisions being taken by management which might be tainted by unconscious assumptions about sex, age, disability etc.

Hopefully, these legal issues will come before the Court of Appeal soon, so that we can get a better sense of where the law will draw the line when it comes to exploring the thoughts of decision-makers. Until then, take steps to mitigate the risks. I believe there’s a fitting quote from the West Wing:

“It’s not the ones that we lose that bother me… it’s the ones we don’t suit up for.”

Sound advice.

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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