The General Social Care Council has revealed figures showing that some groups of social workers are more likely to end up being referred for misconduct. Allan Norman, principal social worker and solicitor at Celtic Knot, an independent law firm and social work practice that has represented social workers in General Social Care Council regulatory proceedings, says this should have come to light sooner.

Playing the race card? You will recognise the phrase, which conjures up images of people from black and minority ethnic groups using their ethnicity as a ‘Get Out Of Jail Free’ card. At least in the area of professional regulation, this is so wrong. I have appeared in front of the GSCC, where my client was accused of misconduct, for a practice indulged in by the whole team – only the black social worker was disciplined.

You could cut the air with a knife when I mentioned the R word; and even though I had done my homework very carefully, there was a hurried whispered conversation with my client – move on quickly, the panel were affronted, even though it wasn’t about them. More like a ‘Go Direct To Jail, Do Not Pass Go’ card.

The debate has been somewhat more lively in my other profession, law. In 2008 its regulator commissioned Lord Ouseley to investigate why black and minority ethnic solicitors feature disproportionately in the work of the Solicitors Regulation Authority. Among the responses was an article aptly titled, ‘Jobsworths yes, but not racists‘. There, a former president of the Law Society argued that the problem was not racism but “the high-handedness and arrogance of some investigating staff”. “It is easier,” he wrote, “for the jobsworths who inevitably flourish in organisations…to play the officious traffic warden against…a softer target.”

That’s alright, then. This year, the Society of Black Lawyers, asking the necessary question ‘Who is regulating the regulator?‘, questioned the data made available to Lord Ouseley, and last week the regulator agreed to carry out a fresh investigation.

The problem is well known. Early anti-discrimination legislation in the 1970s was based on the premise that those who experienced discrimination must bring an action alleging it and prove it. Which proved problematic. It is both easy and human nature to respond to an allegation of discrimination by saying: “There were objective reasons for my decision, which was professionally made. I would have made the same decision whoever you were.”

It is both difficult and contrary to human nature to say: “I may be subject to unconscious bias. I do not really understand you, because of our differences. I will work extra hard to overcome unconscious bias and poor understanding.”

This is why more recently anti-discrimination legislation has moved in a new direction. Instead of making the person on the receiving end take the risk of potential defeat and humiliation, public bodies at least have been subject to a ‘positive equality duty‘, a duty effectively to start at the end instead of the beginning, to look and see whether outcomes are discriminatory, and develop policies appropriately.

What we have in this GSCC report is the evidence – which is no surprise to me – that certain groups are referred disproportionately to the regulator for regulatory action. It is hard to call it an accident. Not when you find the same findings in other regulators. Not when you find unequal outcomes for ethnicity and gender and disability. Not when the extent of the inequality is so significant.

The finding that stood out for me when I made my Freedom of Information request in preparation for the allegation I was going to make, concerned not ethnicity but gender. Up to October 2010, men made up 22% of registered social workers, but more than half of those were sanctioned in conduct hearings were male. Again, it is hard to call this an accident, when the same phenomenon is shown to arise in respect of men failing on social work courses, see Gender at Work: Characteristics of ‘Failing’ Social Work Students.

Although it is hard to call it an accident, intuitively, I agree with the verdict on the Solicitors Regulation Authority: jobsworths yes, but not racists, sexists, etc. The decision makers I have dealt with have identified objective reasons for their decisions. The reason you could cut the air with a knife was not that the panel felt caught out, it was the sense of outrage that I should even feel the need to gently remind them of the need to avoid unconscious bias.

The need was there, and it’s a bit late now to address it. The GSCC is abolished. The horse has bolted. But thanks for telling us that the stable door was standing wide open.