University of Portsmouth told to pay lecturer £450,000 for racist selection process

Dr Kajal Sharma was discriminated against by bosses at Portsmouth University when she failed in her application to carry on in her role in the Business and Law faculty, a damning judgement found. An employment tribunal heard that over a three year period the 41 year old was one of only two senior lecturers at the institution to not be re-appointed 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, in an 'extraordinary' move, head of department Professor Gary Rees and two colleagues appointed Kerry Collier to the role, described by the panel as 'a white woman with no experience of the job'.

Dr Sharma has now been awarded at least £450,000 in compensation with the possibility of a further £300,000 depending on pension calculations after the tribunal concluded that the selection process was 'tainted by race discrimination'.

The panel - chaired by Employment Judge Catherine Rayner - was particularly critical of 'respected' Prof Rees, accusing him of treating the academic differently to white staff due to 'subconscious bias' against her.

Making the compensation award, EJ Rayner said: "The fact that the discrimination was not intentional or deliberate in this case, does not reduce the level of hurt experienced by [Dr Sharma].

"Unconscious bias is pernicious and destructive and [she] was entitled to assume that senior members of academic institutions would behave with scrupulous fairness and have an awareness of the possibility of their own potential biases."

The hearing in Southampton was told that 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.

She told the tribunal that she and Prof Rees - her manager - had a 'difficult' relationship and cited several examples of unfair treatment including wanting her to do university work in the aftermath of her father's death and failing to support her while she was caring for her sick infant son.

He also actively encouraged a white colleague to pursue an additional qualification but failed to support Dr Sharma when she suggested she was interested in doing the same, the hearing was told.

Then, when her contract was almost up, Prof Rees failed to tell her that her job - which she had been doing for almost five years - was being advertised. She applied for the post and made it on to the final shortlist of two, which consited of her and Mrs Collier.

"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," the tribunal noted.

Prof 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 academic deeply upset.

However, 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 race discrimination and victimisation.

As part of her claim she submitted a Freedom of Information request to the university to ask about the treatment of ethnic minority - BAME - academic candidates.

"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," the tribunal heard.

"(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 percent 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 was highly critical of 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. "

The tribunal said it was not convinced by Prof Rees's 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," it said. "We are not satisfied by the explanation.

"On that basis we would have found that the process was tainted by race discrimination."

The tribunal accused Prof Rees of 'extraordinary behaviour' towards Dr Sharma. "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."

Fiona Hnatow (corr), Chief People Officer at the university, told the tribunal: "On behalf of the university I would like to apologise for the conduct found to have been unlawful and for the impact this has had on Dr Sharma and her family.

"There are no excuses for race discrimination at the university and we recognise and accept the strength of the tribunal's judgement."

The hearing was told that following the original judgement - published in December 2022 - Prof Rees was asked to step down from a leadership position and then left the university in March 2023 'with a confidential agreement'.

Ms Hnatow told the tribunal that staff now undergo unconscious bias training as well as 'positionality' training, which looks at 'the experiences and  beliefs and identities of others in order to tackle potential biases and shape how individuals understand and engage with other people'.

Dr Sharma was awarded £247,194.95 compensation including £42,000 for injury to feelings and £57,000 for psychiatric injury. Her pension losses - which are still to be finally determined - were put at between £200,00 and £500,000.