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When some are more equal than others

Marina Wheeler, One Crown Office Row

 

Let’s pretend you need a job. And let’s imagine that you are white, male, heterosexual, in reasonably good shape for 45 and with a moderate attachment to the Church of England. You scan the appointments section of the Daily Telegraph and here is just the vacancy. A business in Wolverhampton needs a new accounts manager.

You reach a shortlist of eight. The other candidates include: Sandra, recently married, who is hoping to get her first job; Said, a Muslim graduate; Roger a "mature" 55; Hamish who is openly gay; Horace, a West Indian; Gerald who suffers a residual Repetitive Strain Injury and has limited use of his left arm; and Patrick a Jehovah’s Witness who makes it clear that in an emergency he would refuse medical treatment.

The interview process seems fair: all candidates are asked similar questions, focused on their experience and skills for the job. But there is one crucial, invisible difference between you and each of the other seven applicants.

Any one of the others, if turned down for the job, could under existing or forthcoming legislation bring a discrimination claim before an Employment Tribunal. Each has a "protected characteristic" under revised legislation based respectively on gender, religion, age, sexual orientation, race, disability and belief. If you were to be turned down, you, and you alone, would have no grounds for action.

Two European directives mean that by December 2003 it will be unlawful to discriminate not only on existing grounds of sex, race and disability but also on grounds of sexual orientation and religion or other belief. By December 2006 age discrimination will also be unlawful. The government calls this "the most significant review of equality in over a quarter of a century". But a review it is not. Instead it is a major extension of "equality laws" without the review necessary to ensure that the system will work.

The Race Relations and the Sex Discrimination Acts, both products of the 1970s, have transformed the workplace - largely, in my view, for the better. In tandem with European Directives, this legislation has ended many poisonous forms of harassment. It has equalised retirement ages for men and women, outlawed dismissals on grounds of pregnancy, and improved the status of part-time workers. Since the Disability Discrimination Act 1995 came into effect, many people have found jobs who would otherwise have been shut out from employment.

But to those who practice employment law, the bigger picture is by no means all rosy. There are many good claims; but there are too many bad claims. My own experience, shared by many colleagues, is that a high proportion of discrimination cases we deal with are ill-founded. One colleague puts the figure at more than 60 per sent.

An allegation of discrimination is easy to make. For a disgruntled or poorly performing employee it can be a convenient excuse – and tribunal cases are easy to bring. The losing party will not expect to pay the other side’s costs – though he would if embarking on most other civil litigation. Some of the payouts, since the Government removed the cap on damages payable in discrimination cases, have been notoriously large. This means that if you complain of unfair dismissal and you belong to one of the already "protected" categories, you will routinely add on a further claim for discrimination.

Very few of these ill-founded cases actually succeed, and to that extent the system does work. But merely conducting these cases can be hugely destructive, both financially and in terms of the damage to working relationships. Patrick Green, a barrister experienced in discrimination litigation, makes the point that "being branded a racist is just one letter away from being branded a rapist. Many people forget that an allegation of discrimination at work is usually made against an individual not just the company".

For an unsuccessful applicant a Tribunal hearing can be an uncomfortable, even painful, experience. It is a very public and hostile environment in which to learn that the real reason you were not promoted was your lack of ability in the job. Many unregulated advisors make a living bringing discrimination claims, and they do not always seem to have the best interests of the Applicant in mind.

At the end of last year I resisted a claim in which a skilled factory worker complained that his colleagues had racially harassed and discriminated against him since 1996. After an eight day hearing, the applicant was found to have fabricated race hate-mail in order to beef up his claim. All allegations of serious harassment were dismissed. He was found to be a difficult employee of poor ability who responded badly to criticism. No compensation was awarded.

It was a classic example of the distorting effects of discrimination law. Faced with this under performing black employee, the firm shrank from dismissing him for fear of prompting a discrimination claim. The union - which funded the case - had been warned that the Applicant’s social isolation was caused by his habit of making lewd remarks in the showers, notably about his colleagues’ wives. The union did not want to know.

Recent legislation that reverses the burden of proof in discrimination cases, would have made our case more difficult to win. Once a complainant establishes facts from which it might be inferred that discrimination has occurred, the burden shifts to the employer to prove that it hasn’t. In spite of the Applicant’s outrageous lies, and the finding that he had sexually harassed most of those he was accusing of racism, he was not ordered to pay any costs. Tribunals can in theory make such an order, but rarely do.

 

The case had much to tempt the tabloids, but attracted little publicity, since it involved a relatively obscure company. As one barrister Wendy Outhwaite points out, “for larger employers, the fear of publicity is a powerful incentive to buy off a claim, even if it is wholly lacking in merit”.

It is in this unhappy climate of growing concern about the increase in vexatious tribunal cases that equality laws are being extended. The provisions on sexual orientation are currently thought to be the least controversial; but the prohibition against discrimination on grounds of religion and belief is expected to throw up many serious difficulties.

Problem one is the Regulations’ elastic definition of "religion or belief" as "any religion, religious belief or similar philosophical belief". Deciding what is a religion is tricky enough. But what "philosophical beliefs" might be thought worthy of protection?
Will pharmaceutical companies be breaking the law, if they refuse to employ animal rights activists? Last year a group private Christian schools challenged the ban on corporal punishment, saying that it violated parents’ rights to ensure their children¹s education was in conformity with their own religious convictions.

The trial judge did not consider their belief to be an "article of faith" - it was a belief in the efficacy of corporal punishment. But the majority of the Court of Appeal disagreed, with one judge, Lord Justice Buxton, dissenting. Not much agreement there! The law is already confused about what constitutes a "belief" and that is before the perplexing new provisions have even come in.

How can Britain’s beleaguered companies prepare? According to the Department of Trade and Industry, "Employers will need detailed guidance on issues such as diet, dress and religious observance to help them avoid having rules which discriminate directly or indirectly against staff on the grounds of religion and belief". This means larger employers may have to provide prayer rooms or re-arrange working times to enable Muslim worshippers to attend a Mosque. Or employers might have to pay more for people who work on days "which they would rather not work".

Religious organisations will be allowed to discriminate so as "to ensure the preservation of any special religious ethos", and to dismiss staff who do not "act in good faith and loyalty towards that ethos" - for example, by ridiculing tenets of the religion or flagrant sexual misconduct. On this basis it seems at least arguable that a religious school could refuse to employ a teacher who was openly gay.

Many of those helping to draw up this guidance are phlegmatic. "There are always solutions", they say. Many predict even greater problems with the provisions outlawing age discrimination. A few weeks ago I shared a platform with David Bean QC, a big cheese in discrimination law, former Chairman of the Bar and member of Matrix Chambers. He opened his talk on the age provisions thus: "For those of you who think it has all gone too far, my message is - you ain’t seen nothing yet".

Most of us know older people who cannot find jobs or who have been compulsorily retired while still having plenty to give. We also know that the pressure of supporting an ageing population makes it vital to keep older people in the labour market. But will discrimination laws really help?.

In some jobs physical fitness is essential (pilots, divers, offshore riggers), and employers will not accept the increased risks from age. When the US banned mandatory retirement, employers increasingly dismissed older workers on grounds of performance. Is that unfair? Is it unfair to turn down a 62-year-old for training, on grounds that the employer would not expect a decent return on investment? Is it fair to offer pay and benefits to reward long service, rather than performance and thereby discriminate against younger workers?

All these questions will now come before the courts: Employment Tribunals, Employment Appeal Tribunals and then the Court of Appeal. Indeed, the judges themselves may have to decide why they are deemed fit to pass judgment at 70, but not at 71. The trouble with age discrimination is that it involves a continuum, rather than a clear distinction between black/white, male/female, gay/straight. How old is old? And who are the young? As the CBI puts it, "with no natural boundaries, indirect age discrimination risks becoming a litigant’s charter by which applicants can shift the goal posts".

And he problem with such vague legislation, introduced in the absence of a clear consensus as to what is fair, is that Employment Tribunals are left to determine what conduct is lawful after the event. This is wrong. It places an unreasonable financial burden on the employers and encourages litigation. Litigation, of course, means conflict – and that will often exacerbate rather than resolve the real problems in the workplace.

 
   
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