All things being equal...

Related tags Discrimination Theft Us Uk

It is the lot of every solicitor that there will be a dinner party question folk cannot resist asking for every area of law. For the criminal lawyer...

It is the lot of every solicitor that there will be a dinner party question folk cannot resist asking for every area of law.

For the criminal lawyer it will be to ask how anyone could act for someone who they 'know' is guilty; for the tax lawyer it will be whether anyone could ever get them to give a straight answer and for the employment lawyer it will be the perennial 'don't you think things have gone too far now?'

The answer to the last one is a clear 'depends', since much will indeed depend upon the type of clients the lawyer gets to deal with.

Undoubtedly the major corporate clients will complain the law is too complex - but they will have experienced HR teams to administer things (and a fair budget to defend any claims) which will ease the burden.

Those acting for individuals could always find use for another law to help their clients and so will feel more could be done.

Which leaves us with smaller enterprises (such as those within the licensed trade), including owner managed businesses, who as usual find themselves the filling in this particular sandwich (no pun intended).

A lone stand​Without the resources to engage full time HR professionals to ease the burden these businesses are often left alone to chart the complex waters of employment law, and in particular the difficult area of our discrimination laws, which cover all aspects of the employment relationship from advertising a role, through employment terms to the termination of an individual's employment (and sometimes beyond).

Indeed, some will confess that their employees are often more clued up on the laws than they are and many will openly state that they believe their managers to be bullied by their junior staff members who so often overstate their rights.

Recent examples of such bullying include employees demanding long holidays at very short notice (to visit relatives in other countries), flatly refusing to work overtime, and turning up late for work (on the express basis that if they are sacked they will sue for discrimination as they happen to be of a protected group).

These problems can, of course, be correctly managed and it is not simply the case that because someone is of a particular gender or race they can do what they like.

The stereotypical employee about to be dismissed (through a process) for theft who announces that she is pregnant should be congratulated, but unless it is a mitigating factor they can be dealt with in the same way as anyone else.

Against this backdrop many publicans will have winced if they saw the further potential changes to discrimination law announced by the government last month.

Equality Bill changes​On the one hand, the suggestion in the new Equality Bill that the various discrimination laws should be brought together (e.g. streamlined) may sound welcome.

However, several of the laws will always have their own angles which will need inclusion and may prevent any real simplification.

These will include the need to make "reasonable adjustments" for a disabled employee, specific maternity provisions under the sex discrimination laws and the different definitions employed in some of the statutes at hand (e.g. the idea of discrimination on the grounds of someone's "age group" under age discrimination law; not forgetting the concept of a retirement procedure).

All of these may lead to a more complex beast than we have at hand but the thought is appreciated.

On the other hand, few will have greeted the suggestion that employers may be forced to positively discriminate in favour of an under-represented category of worker, with open arms.

Positive discrimination and quotas have found their place in the US, and indeed public institutions in the UK, with rather varied results. But it has never seriously been proposed here as a concept in the private sector as it has always been thought unworkable and the law has remained concerned with individuals not being treated unfavourably in the employment domain rather than being advantaged.

Where all other factors are equal​Admittedly, the suggestion is not one of quotas (used many years ago without success in respect of disabled employees) but of preferring a candidate from an underrepresented group where all other factors are equal.

In theory this could be attractive. If there are two candidates who are otherwise the same, why not chose the female worker (where the male/

female balance is slanted in favour of men, say) or the Asian or black worker (where the business is predominantly white European)?

The problem is that few us of have ever interviewed two or more candidates and found "all other things being equal" about them at any level. It is always a debate about the pros and cons of each candidate on their merit and to be honest sometimes an act of faith.

Also, for smaller businesses, are they always going to have a view on what is an under-represented class of employee? If there are only two or three employees what will this really mean in practice?

Thankfully, the Bill is at an early stage and undoubtedly will come under great scrutiny, not least from the equal opportunities lobby who are not entirely signed up to this kind of approach.

Many may argue that this can lead to an undermining of the current law as it encourages a backlash against equal opportunities in some quarters. It may also lead to a greater rigging of second interviews etc. as employees seek to justify their decisions. This could lead to under-qualified candidates being brought to second interviews to tip the balance - and having their time wasted.

Ultimately all employers must now be signed up to employing the best person for the job regardless of the inherited characteristics (or disabilities) of the candidates involved - whether they like it or not. As a nation we have made that commitment. Should the Equality Bill survive the political process and make it into law next year, it may however make life easier for the employment lawyer at that dinner party - 'has employment law gone too far?'

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