"this is a case of subconscious discrimination."
A tribunal has ruled that the University of Portsmouth discriminated against an Indian lecturer.
Dr Kajal Sharma failed in her application to carry on in her role in the Business and Law faculty. It was a role she had been doing for five years.
She was one of only two senior lecturers at the institution to not be reappointed to their job.
She was the only ethnic minority candidate to have failed in their application while 11 out of 12 white colleagues had all been retained.
Instead, head of department Professor Gary Rees and two colleagues appointed an inexperienced white candidate.
The tribunal panel – chaired by Judge Catherine Rayner – was particularly critical of “respected” Professor Rees, accusing him of treating Dr Sharma differently to white staff due to “subconscious bias” against her.
Dr Sharma began her role as Associate Head for Organisational Studies and Human Resources Management on a five-year contract at the start of 2016.
The lecturer said that she and Professor Rees had a “difficult” relationship and cited several examples of unfair treatment including wanting her to do university work shortly after her father’s death and failing to support her while she was caring for her sick infant son.
Professor Rees also encouraged a white colleague to pursue an additional qualification but failed to support Dr Sharma when she expressed her interest in doing the same.
When her contract was almost up, Professor Rees failed to tell her that her job was being advertised.
She applied for the post and made it onto the final shortlist of two, which consisted of her and Kerry Collier.
The tribunal said: “Dr Sharma is an Indian woman who speaks with a marked Indian accent and cadence, Mrs Kerry Collier is a white English or British woman.”
Professor Rees was on the interview panel and supported Mrs Collier’s candidacy over Dr Sharma’s in a two-to-one vote that left the Indian lecturer deeply upset.
But her complaints to the university were “ignored” and then eventually led to an “unnecessarily slow” investigation which concluded she had not been treated unfairly.
She then took the institution to the tribunal claiming racial discrimination and victimisation.
The tribunal heard: “In her request, (Dr Sharma) asked for information about the number of Associate Heads; Head of Department and other senior management role holders who had reapplied for their posts in the last 15 years and how many of them were reappointed.
“(She also asked) how many BAME candidates applied and were reappointed and how many of those BAME were female.
“The University responded that 12 academic senior management vacancies had arisen since 2018 in which the incumbent had reapplied for the post, and that of those, 11 were reappointed.
“No BAME candidates had reapplied for their post within that period. We understood that all 12 posts were ones where the incumbent was a white person and that in 91.6 % of cases, the person was reappointed.
“(Dr Sharma) was the only BAME any candidate at that level, that we were told of who had reapplied for their post and been unsuccessful. We have no evidence before us about the reasons why the one other person had not been reappointed.
“On the evidence we have… we conclude that (Dr Sharma) was one of only two individuals who had not been reappointed to their post following reapplication.
“All things being equal, the usual outcome when a person reapplied for their post, was that they would be reappointed if they wanted to be.
“Therefore, statistically, (Dr Sharma) could have expected to be reappointed. The difference is that she is an Asian woman and the only BAME person in the sample.
“We are aware that this is a small sample but we all agree that this is statistically significant.
“The fact that (Dr Sharma) was not successful in applying for the job she had been doing for five years, meant that a hundred per cent of the black and minority ethnic staff reapplying for their job had not been recruited, whereas 11/12 of white staff applying for their jobs had been recruited.”
The tribunal criticised the university’s handling of Dr Sharma’s subsequent complaint.
“(We) would have anticipated that this would have triggered some form of enquiry under the University’s own policy and Equality Monitoring, even without (Dr Sharma) herself, having raised the matter.
“(She) was a visible member of the black and minority ethnic staff. She speaks with a marked Indian accent.
“She had been doing the job for five years… and the only criticism apparently made of her was at the end of the tenure and was directed towards her communication skills and some issues around timetabling.
“The fact that she was not reappointed to a post was on the respondent’s own statistics, extraordinary. The circumstances ought to have raised questions at if not a concern at some level.
“Instead, the fact that a senior member of the academic staff who was BAME woman was not reappointed to a post was ignored by the University.”
Stating it was unconvinced by Professor Rees’ explanation of why he had preferred Mrs Collier’s candidacy over Dr Sharma’s.
“We have found that the burden of proof requires (the university) to fully explain why the process of selection was not motivated consciously or unconsciously by race.
“We are not satisfied by the explanation.
“On that basis we would have found that the process was tainted by race discrimination.”
“We conclude that Mr Rees, subconsciously or unconsciously, treated (her) as he did, including failing to reappoint her to a job she had been doing for five years was, in part at least, on grounds of her race.
“We conclude that this is a case of subconscious discrimination.
“Whilst Prof Rees is clearly a respected senior academic his reluctance to recognise the skills and abilities and aspirations of Dr Sharma, and his failure to support and encourage her in the way that he supported and encouraged other white members of staff, points towards a subconscious or unconscious bias.
“We conclude that his involvement in the recruitment process and his subconscious bias means that the failure to recruit claimant was an act of race discrimination.”
Dr Sharma is now in line for compensation. A hearing to decide this will take place at a later date.