Employment and the workplace are key battle grounds in the war on inequality. Employment gets its own 12-page section in the 170-page Equalities Review.
One major area covered in the report that employers should follow with a certain trepidation is the development of discrimination law. The report is sure that a single Equalities Act is the way forward. It concludes that discrimination legislation has developed in “a piecemeal and fragmented way… this makes it confusing for individuals and employers”.
Feeding the sharks
When you look at the statistics, there might just be something to this conclusion. At the last count, discrimination law included 35 Acts, 52 statutory instruments and 16 EC directives and recommendations. It’s undoubtedly more than that now, but no-one has taken the time to do a re-count.
The CBI told Personnel Today that tackling inequality was not so straightforward, as changing the law inevitably meant a feeding-frenzy for law firms.
“Employers will need to be convinced that completely overhauling all equality regulations into a new single Act will deliver real benefits,” said John Cridland, deputy director-general. “There is a risk it will only make work for the lawyers.”
But Christine Morton, associate at law firm Beachcroft, defended the introduction of a single Act. She said the current smorgasbord of law just made employers defensive and anxious.
“[Employers] are worried about tripping up and that inhibits people taking action,” she said.
“For example, there are different definitions for indirect discrimination in different statutes – this kind of thing can be exasperating for employers.”
But she said the pack of legal sharks circling would not be as well fed as the CBI imagined.
“The CBI expects the creation of a new law means work for lawyers who will exploit every ambiguity, and there will be a certain amount of that,” said Morton. “But many of the weaknesses [in discrimination law] have already been exposed in the courts and guidance on dealing with difficulties given.”
One area that remains particularly contentious is whether the law should be altered to allow employers to actively discriminate against one group of people to get more of another group into their workforce.
The Equalities Review claimed it was not recommending positive discrimination because “there is not a public appetite for what is seen as unfair favouring or special treatment of specific groups of people”.
Black pressure group, the 1900 Trust, attacked this conclusion, claiming that positive action (considered a euphemism by many for positive discrimination) is “essential if inequalities are to be redressed in Britain”.
But it is no secret that Trevor Phillips, chair of the review, is a fan and it does not take a big leap of faith to equate some of the report’s suggestions with positive discrimination.
Take, for example, the statement that “there is a case for introducing time-limited, proportionate balancing measures of a type that are not currently permissible under UK law”.
This could be taken as meaning “positive action to help to resolve otherwise immovable, persistent disadvantage”.
Then there is the suggestion that “employers… who for sound business reasons want to increase the number of women or ethnic minority groups on the staff, may be prevented from saying so in their recruitment process”.
The review concludes that while it “appreciates that anti-discrimination law should be applicable in all situations… it is increasingly [the case] that, if applied too rigidly, it may itself become the enemy of security, equality and social cohesion”.
This is one very small step short of positive discrimination proponents just have to wait for the political wind to shift before pushing it further.
But Dianah Worman, diversity adviser at the Chartered Institute of Personnel and Development, said the key to the problems identified in the report did not lie primarily in legislation. The crucial driver of change is to consistently and effectively make the business case for action, she said.
“There is growing evidence that a positive approach to diversity can bring business benefits.”
But it’s worth asking whether this whole shooting match could be a waste of everyone’s time.
Soon, the Commission for Equality and Human Rights (CEHR) will start overseeing this area. From October 2007, it will combine the commissions for racial equality, equal opportunities and disability rights headed by the omnipresent Phillips.
Lack of enforcement
However, these bodies have a history of talking a good game, while not making use of the powers available to them. A study by the Public Interest Research Unit found that between January 1999 and June 2006, the three quangos made no use of five of their enforcement powers, and little use of the five others.
Is the Equalities Review looking to uphold this proud tradition? It stated the CEHR needed to conduct “further research to understand fully the depth and pattern of prejudice”. If two years wasn’t enough for the review team to get its head around it, you have to wonder how much time it will take.
By Michael Millar