This is all the fault of Daniel Barnett. He rather mischievously pointed me in the direction of this article in Spiked – the online magazine that likes to think of itself as punchy and edgy. It was written by a barrister – Jon Holbrook – and it is quite possibly the most wrong-headed thing I have ever read. I am almost literally fuming at how wrong it is. And ignoring the shouts of ‘leave it Darren, it’s not worth it’ I would like to explain what is wrong about it because I think that will make me feel better.
Holbrook begins by noting that the British political establishment came down on Nigel Farage like a ton of bricks when he appeared to suggest that workplace race discrimination laws should be abolished. He proposes to develop the debate ‘that Farage tried to start’. What follows is an argument to the effect that race discrimination law stops employers from recruiting and promoting on merit and requires them to lower their standards to admit more black and minority ethnic candidates. Yes really.
First of all, in response to Sadiq Khan who had made a point about the racism his parents suffered Holbrook says:
The reality, of course, is that attitudes towards race have changed beyond recognition since Khan’s parents arrived in the UK. Racism, as the denial of equality of opportunity, is now a thing of the past. Khan’s inability to use a contemporary example of workplace racism was testament to that fact.
I mean. Really? If this was all Holbrook had said I wouldn’t have bothered replying. There are many better qualified than me to talk about the reality of racism today. I would just suggest, however, that the fact that Sadiq Khan’s article referred more to past than to present race discrimination doesn’t mean there aren’t any current examples that could be referred to. Try Googling the phrase ‘race discrimination claim upheld‘. Discrimination may not be as overt as it once was, but it has not gone away.
But even if it were true that there was no longer any workplace discrimination, I don’t see that that amounts to an argument for abolishing discrimination law. Developments in security procedures mean that bank robberies are largely a thing of the past, but no-one suggests legalising them.
Direct discrimination – all but disappeared?
The main point I wanted to pick up on however, is what Holbrook says next. Brace yourselves.
In recent years, direct discrimination claims in the workplace have all but disappeared in favour of claims described by the law as indirect discrimination claims.
My reaction to reading this sentence is difficult to describe. Imagine walking across a bridge over the M25 with a friend who turns to you and – shouting to be heard over the noise of the traffic – says ‘of course in recent years, cars have all but disappeared in favour of bicycles’. When it became clear that he wasn’t being ironic you might seriously worry about his grip on reality.
Quite where Holbrook gets the impression that race discrimination cases are mainly about indirect discrimination is a complete mystery. I would love to know how he arrived at this idea and perhaps he’ll comment on this post explaining his methodology. But anyone with experience of discrimination law – and I suspect that Holbrook does not belong in this category – can tell you that most race discrimination cases are either about harassment or victimisation or straightforward less favourable treatment on the grounds of race. Indirect race discrimination cases are positively unusual.
In researching his article Holbrook obviously decided to read a case and came upon the EAT decision in Essop & Ors v Home Office which is about indirect race discrimination. Perhaps like an alien landing in the desert who assumes that the world is made of sand, he assumed that Essop is typical of race discrimination claims.
Essop is not typical, but it is a neat illustration of how indirect discrimination works. In Essop the pass rate in a test used by the Home Office was shown to be lower among BME/older employees than for younger/non-BME employees. The difference is not set out in the case but it was agreed to be statistically significant. The EAT allowed the claim to proceed despite the fact that the reason for the lower pass rate – both among the disadvantaged group as whole and the individual claimants was not known. Langstaffe J held that it was enough that the process could be shown to disadvantage a particular racial group. Holbrook says:
In truth, cases of indirect discrimination, of which the Essop case is a good example, never establish racism. Essop was not prevented by his race from becoming a higher-executive officer in the civil service; all he had to do was pass the same exam, which was not racially biased, as everyone else. Indirect discrimination claims succeed not for a want of equality of opportunity, but for a want of equality of outcome.
Holbrook’s point seems to be that race discrimination is now all about indirect discrimination (it really isn’t, remember) and that indirect discrimination is not ‘proper’ discrimination because it isn’t about racism. This is an absurdly narrow view. In any event, indirect discrimination is not about equality of outcome; it is about unjustified disadvantage.
In talking about Essop notice that Holbrook asserts that the test ‘was not racially biased’. However, that is not what the case says. The point is that the cause of difference has not been identified. However, the fact that the test clearly puts a racial group at a ‘particular disadvantage’ is not just a statistic. It might indeed be that there is a racial bias hidden somewhere in the structure of the test. It might also be that the difference has its roots in the socio-economic backgrounds of the people taking it or it might be about language.
What about the justification test?
Employers accused of indirect discrimination claims have a defence if they can show that the ‘provision criterion or practice’ at issue is a ‘proportionate means of achieving a legitimate aim’. The Essop decision was concerned only with the preliminary point about the nature of the disadvantage. The case is then sent back to the Employment Tribunal to consider the issue of justification. Justification is absolutely central to indirect discrimination. You simply cannot talk meaningfully about indirect discrimination without talking about justification.
So, given that most of his article is a critique of indirect discrimination it is bizarre that at no stage does Holbrook refer to the defence of justification. Why not? Perhaps he would like to comment on why he thought the concept was not worth referring to. He obviously knows that there is a defence of justification – some of his phrasing is very careful – but he never actually refers to it directly and explains what it is. Is there any explanation other than a desire to make indirect discrimination sound as unreasonable and oppressive as possible?
Nothing to fear…
Instead of explaining how the law actually works he chooses to describe the effect of the law based on what employers ‘fear’.
In the workplace employers fear they may be castigated by statistics showing they employ a disproportionately low number of BME staff, or a disproportionately low number of BME staff on higher pay grades, or a disproportionately high number of BME staff on lower pay grades. Statistics of this sort (which can be sliced and diced in any number of ways until the disproportionate outcome is discovered) can be enough to leave an employer facing the moral obloquy of a ‘race discrimination’ claim in an Employment Tribunal.
This is an old trick. Rather than complain about what the law actually is, complain about what people think it is. That way you don’t have to make any effort to understand the subject. Actually Holbrook gives no evidence that employers do fear these things – but the clear implication of his article is that they should. But why? Our law does not require diversity; it requires an absence of discrimination. You can’t actually claim indirect discrimination just by citing statistics. You need to show that there is a ‘provision criterion or practice’ that is causing you a disadvantage and which also causes a particular disadvantage to people who share a protected characteristic with you. Lots of employers will have a disproportionately high number of BME employees in lower grades. How many of them actually get sued as a result?
Spiked likes to think of itself as offering something ‘fresh innovative and irreverent’ but this is just the same sort of ‘political correctness gone mad’ whinge we’ve seen so often in the mainstream media. It seeks to confirm prejudices rather than challenge them. Instead of increasing understanding it spreads misinformation. Readers of Spiked may be forgiven for thinking that because Jon Holbrook is a barrister and was shortlisted for a legal journalism award at last years’ Halsbury Legal Awards then he must know what he is talking about. On the evidence of this article, he doesn’t.