When we lawyers are trying to paint ourselves – and the law – in a positive light, we often talk about law as an instrument of social change, as opposed to regulation that hampers the growth and profitability of business. One area of employment law where I believe legislation can genuinely be seen as an instrument of social change is the field of discrimination law.
The Employment Equality (Age) Regulations 2006 have now been with us for eight months, and have been described as the most significant change to employment law for 30 years. Opinions have also been expressed that the law is ahead of society. I am sure that is true.
Throughout our society, we continue to discriminate on the grounds of age. It remains arguably acceptable (although unlawful) to make assumptions about employees based on age. Ageist jokes or comments do not yet have the same stigma attached to them as racist or sexist comments.
But this situation is probably no different to general views on racism and sexism in the mid-1970s. Since then, society has caught up with the law, and those who now believe it is acceptable to discriminate on these grounds are in the minority.
So if age discrimination is going to shape our society further in the years ahead, are there yet still other disadvantaged groups that need the protection of discrimination legislation?
For once there is nothing in the pipeline either at an EU or national level. However, I don’t think that means that age discrimination will necessarily be the high watermark of protection against discrimination within the workplace.
Further protection could be administered in one of two ways. First, existing legislation could be interpreted and extended through case law to cover new areas. Second, new legislation could be introduced.
In considering what might be covered next, it is helpful to look at experiences elsewhere around the globe.
In the US, weight discrimination is very much on the agenda. At a Federal level, it is not unlawful to discriminate on the grounds of weight or size, but the Americans with Disabilities Act has been interpreted to cover employees who are ‘morbidly obese’. Such employees could also be covered by the Disability Discrimination Act in the UK. Some US states also formally prohibit discrimination on the grounds of weight.
The UK’s population is also gaining weight as a result of increased affluence and more sedentary lifestyles. While this hasn’t yet reached the epidemic proportions we see in the US, it is still an issue, and one on which people are very judgemental. It will be interesting to see whether this is an area that is tackled through regulation in the future.
Scientific advances are also likely to give rise to the need to regulate against discrimination. Genetic discrimination is very much a live issue both here and in the US.
There is no evidence that genetic testing in employment is widespread in the UK, but it remains an issue of concern that is kept under regular review by the Human Genetics Commission. The commission refers to one example where a police force apparently refused to engage a successful recruit because he carried the Huntingdon’s disease gene.
Some staff protection is already in place through the Employment Code published by the Information Commissioner, but this is unlikely to be sufficient if the practice becomes more widespread.
Finally, what about discrimination on grounds of background? This is outlawed in India, where class still remains a huge issue because of the caste system – its hereditary system of social stratification which has traditionally defined the job you can do, and who you can marry.
In the 20th century, the class system in the UK is perhaps less extreme and arguably of less relevance. However, it does remain, despite politicians advocating a classless society.
The creation of the Commission for Equality and Human Rights in October of this year is likely to result in a more co-ordinated approach to discrimination in the UK. Who knows where discrimination law may take us in the future? If I was a betting man, I wouldn’t be putting my money on age discrimination being the final frontier.
By Michael Leftley, partner, Addleshaw Goddard