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The problem
You and your new line manager have been tasked with interviewing candidates for a vacant pharmacist role within your department. There are two applicants for the role who are both highly respected in their field with similar experience and qualifications. The first applicant is white and the second applicant is black. While interviewing the second candidate, you notice your line manager giving the interviewee a particularly hard time, which is in stark contrast to how your manager handled the first interview. Despite this, you feel the second candidate handled the extra pressure well.
The next day, while discussing the candidates’ performance, your line manager indicates they would only appoint someone who they can relate to and would blend well into the team. Your manager decides not to hire the second candidate as they feel they may not be the right “fit” for the department. You cannot help but feel your manager’s decision is racially motivated.
What should you do?
Below are the personal views of pharmacists approached for comment. They are not reflective of the views held by any affiliated organisations.
Source: Courtesy of Lisa Boateng
“The only ‘fit’ in discussion should be against the job criteria”
The manager’s phrase “not be the right fit” for the department needs to be qualified. I would ask “what do you mean?”.
The only “fit” in discussion should be against the job criteria for which the interview and application are based upon. Candidates should be assessed against qualifications, knowledge, experience and other qualities underlined in the job specification.
The term “not the right fit for the department” implies a bias outside of job specification and, when based on the difference in race of the candidates, could be racial discrimination.
Race is a protected characteristic within the Equality Act 2010 and hence it is unlawful to discriminate against an applicant for a job on this basis.
The organisation would have a recruitment and selection policy which clearly outlines the stance on equality and diversity.
Diversity also seeks to actively encourage differences which include race and cultural backgrounds therefore “fitting in” would not be in line with any diversity statement.
The final recruitment choice should be based on the objective specifications of the job and in line with good equality and diversity practice.
Lisa Boateng, highly specialist pharmacist, antimicrobials and infection control, Barts Health NHS Trust
Source: Courtesy of Mohammed Hussain
“Put the issue on the table”
Overt racial bias is very rare in our society today. That is not to say there is no bias, but that it is likely to be less overt and even unconscious bias.
The allegation of any racial bias (even unconscious bias) is often considered worse than actual racial bias. Defensiveness and flipping of the focus on the person raising the issue is not uncommon, for example: “The problem is not my bias, the problem is your making an issue of it.”
In recruitment, ‘fit’ is the classic trigger word to mask bias. This is sometimes used to prevent recruitment of a female to a majority male team, or a person of a different culture or race to an ethnically uniform team. It is wrong and it should be challenged.
A true meritocracy would not include a subjective judgement of ‘fit’ that denies the best people roles and perpetuates a bias.
Raise the issue with your new manager, ask them to unpack what they mean by ‘fit’, focus on the objective measures of experience and skills. If this does not lead to any insight, bring the issue of unconscious bias directly into the conversation. Would an independent analysis of the recruitment process identify potential bias? Highlight the value of diversity within the team, the ability to grow the sense of ‘fit’ to become a broader inclusive understanding linked to values. Seek out and contact the Equality Diversity and Inclusion lead if your organisation has one.
Even if you are unable to reverse the decision in this case, you have been true to your values and put the issue on the table. Continue to work hard to ensure unconscious bias is designed out. Gather data on the diversity of your team versus the wider organisation and the relevant local population. Tackling bias is not a moment — it is a lifetime of small nudges.
Mohammed Hussain, senior clinical lead for NHS Digital and fellow of the Royal Pharmaceutical Society
Source: Courtesy of Julie Dennis
Julie Dennis, head of diversity and inclusion at the Advisory, Conciliation and Arbitration Service
Professional advice from Julie Dennis, head of diversity and inclusion at the Advisory, Conciliation and Arbitration Service (Acas)
We are all unconsciously biased and it is easier to recognise this in others, which is why we advise that there should be at least two people on a recruitment panel.
Any concerns about potential bias from a panel member during a recruitment process should be raised between the panel members themselves.
Organisations should be aware they have a responsibility to ensure that no unlawful discrimination occurs at any stage in the recruitment process on the grounds of age, disability, gender reassignment, marriage and civil partnership, maternity, pregnancy, race, religion or belief, sex or sexual orientation.
Someone who feels that they have been discriminated against, can take legal action against the organisation that interviewed them. So it is important for any organisation to have a fair and robust recruitment process. We would advise that all interviewers are trained and aware of the laws they need to follow when it comes to recruitment.
In this case, under the Data Protection Act, the person who was interviewed has every right to request information written about themselves and this may be enough to prove a case for race discrimination, of which, there is no limit to the amount of compensation the individual could achieve if awarded in their way.
As well as any discrimination award there is also the potential of a Vento award (injury to feelings) which is currently:
- Lower band (less serious cases): £900–8,600
- Middle band: £8,600–25,700
- Upper band: £25,700–42,900
- Exceptional cases exceeding £42,900
It is also possible for the people involved in the recruitment decision to face legal action themselves as individuals.
An individual can be named as a second respondent or vicarious liability can take place. If the organisation was found wanting in a case they could, with evidence put to the judge to demonstrate that through business actions the individuals should have known better than to discriminate, can ask the judge to remove some of the liability from the organisation onto the individuals making the recruitment decisions in this case.
Acas provides information, advice, training, conciliation and other services for employers and employees to help prevent or resolve workplace problems.
For more information visit: www.acas.org.uk/recruitment
