Can unconscious bias be inferred when taking into account the subjective intention of an employer, (what the employer really thought), when she or he acts against an employee? The recent High Court’s (HCA) decision on The Board of Bendigo Regional Institute of Technical and Further Education v Barclay  (Barclay) focused on whether the law can go as far to say that an organisation can be held accountable for thoughts it is not aware of when it comes to adverse action, including firing and disciplining an employee.
Mr Barclay, an employee of Bendigo Regional Institute of Technical and Further Education (BRIT), and a delegate of the Australian Education Union (AEU), sent an email to members of the AEU employed at BRIT stating that several members had advised him they had been asked to produce false and fraudulent documents for an audit. After this email was drawn to BRIT’S attention, the CEO, Dr Louise Harvey, issued a letter to Mr Barclay asking that he provide details as to why he should not be subject to disciplinary action because of his behaviour. Mr Barclay was unwilling and unable to provide such proof and was consequently suspended from his job while his employer undertook an investigation into the matter. Mr Barclay, supported by the AEU, initiated Federal Court proceedings alleging that he had been subject to adverse action, as a result of his involvement with the union, in breach of s.346 of the Fair Work Act 2009 (Cth) (FW Act).
S.346 of the FW Act prohibits an employer from taking adverse action against an employee because that employee is an officer or member of an industrial association, or because that employee engages or proposes to engage in particular kinds of industrial activity. Under s.361 of the FW Act, adverse action taken against an employee will be presumed to be action taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise.
A lower court, (Full Court of the Federal Court), had decided that even though Dr Harvey had emphatically denied that her decision was influenced by Mr Barclay’s union status, that this fact must have nevertheless played a role subconsciously in the decision she took. This decision was particularly troubling for employers because it meant that regardless of their subjective intention, a court could take a broader view and construe that the ‘real’ reason for an employer’s action was a prohibited reason. In this way, an employer could never win an adverse action case.
The High Court of Australia (HCA) found that Dr Harvey had not taken adverse action against Mr Barclay for any reason associated with his position as an officer of the AEU or with his engagement in industrial activity. Dr Harvey was deemed a credible witness and BRIT was found not to have contravened s.346 of the FW Act.
The HCA found that the distinction between ‘subjective’ and ‘objective’ considerations adopted by the lower court was in error. On appeal to the lower court, it was controversially decided that there was not enough evidence to prove that the adverse action hadn’t at least been taken, in part, as a result of the employer’s ‘subconscious’ association of the employer with the union’s activity.
The lower court referred to a House of Lords (HOL) Case Chief Constable of West Yorkshire Police v. Khan  (Khan) where Lord Nicholls stated that the court must focus on “why did the alleged discriminator act as he had? What consciously or unconsciously, was his reaction?”
However, in a more recent HOL case, Derbyshire v St Helens Metropolitan Borough Council , Lord Bingham summarised Lord Nicholl’s proposition in Khan as “what matters is the discriminators subjective intention: what was he seeking to achieve by treating the alleged victim as he did?” According to the HCA, “this formulation has no reference to the unconscious.” Essentially, the focus should only be on why the employer thought they made the decision they did, their subjective intention.
Effectively, the HCA established that if a witness gives evidence, which on the face of it is credible, it cannot be rejected based on hypothetical, inferred ideas, as an employer could never win such an adverse action case. For example, an almost impenetrable shield against legitimate disciplinary action against unionists would have existed.
This case is interesting in terms of unconscious bias because Barclay appears to establish a precedent that it would be extremely difficult, to prove in retrospect, that an employer’s actions were influenced by unconscious reasoning when considering taking action against an employee, under the FW Act.
The judgement is correct on the facts. However, in principle subjective intention, which could theoretically incorporate unconscious bias, could be taken into account when the right case presents itself. Perhaps, in time, Australian courts will recognise the power of unconscious bias and how it impacts on every day decisions in the workplace.