Recently, the Social Mobility Commission reported that the class composition of senior civil servants has barely changed since 1967. It found those from poorer backgrounds were less likely to climb what was dubbed the “velvet drainpipe”, and that the great majority of senior roles were occupied by people with privileged backgrounds. The research revealed that only 18 per cent of the 6,000-strong cohort of senior civil servants came from disadvantaged backgrounds, while one in four of this group was independently educated.
The House of Commons Education Select Committee has meanwhile just reported on “forgotten” white working-class pupils let down by decades of neglect amongst policymakers. And not long before this, the essential message of the hotly-debated, government-commissioned Sewell Report on race and ethnic disparities was that social class, more than race, was the key driver of life outcomes in the U.K.
What is to be done? There appears to be a growing consensus around extending the Equality Act (2010) to outlaw “class discrimination” – adding it to categories already covered by the Act, such as race, gender, age, disability and so on. The Social Mobility Commission suggested this as part of its report on the civil service, adding its voice to the Trades Union Congress, and the influential social equality consultancy the Bridge Group, amongst others.
Class-based discrimination affects many people. The proposed amendment to the legislation would outlaw discrimination based on class. Surely making this amendment would be nothing but positive?
Beware unintended consequences. For all its good intentions, we believe that using the Equality Act to tackle class discrimination could be problematic, and even counter-productive.
Current activity becoming unlawful
Many employers and HR professionals who want to pursue positive action initiatives under the Equality Act already have an uphill battle to ensure their programmes fall within the somewhat rigid parameters of the law. The proposed Equality Act amendment would make adjusting recruitment criteria on grounds of class (except where positive action provisions apply) unlawful.
Ironically, therefore, it might undermine contextual admissions to universities, or contextual recruitment into jobs. It would certainly make contextual recruitment more complicated – would it still be lawful to require lower grades from people from disadvantaged backgrounds? Or would that now be considered unlawful positive discrimination against privileged candidates now protected under the Equality Act?
At best, introducing class to the Act would require significant reworking of current tools employers and HR professionals use to improve socioeconomic diversity. At worst, it might make them unusable. America offers a cautionary tale. In the US the Fair Credit Reporting Act (FCRA), which prohibits discrimination on “mode of life growing up”, has upended its own obvious good intentions by making contextualising academic achievement for decision-making in recruitment effectively impossible.
A myopic vision?
In any case, how should we define class? Our everyday lives tell us this is actually very difficult. We all know, or know of, privately-educated people whose parents were not well off but who won scholarships. We know of people whose upbringings were financially privileged, whose parents had done well without being highly educated themselves. We know of people whose families were not wealthy but could draw on rich reserves of “cultural capital”, sustained perhaps by a strong religious or ethnic affiliation.
Sam Friedman, the UK Social Mobility Commissioner, recently made a case study of Ella, who is privately educated but identifies as working class. “My mum is a hairdresser but then she was of the Thatcher world and was encouraged by her parents to own her own salon”, Ella said. “I was sent to a small independent girls’ school… I don’t know if you know much about private education, but you have got the really small ones which are quite cheap.”
So defining “class” for the purposes of legislation is going to be either impossible or very hard. But there will need to be a definition, and a precise one, otherwise there will be no foundation upon which the protections afforded by the Equality Act can be based.
Draw the definition too tightly, and you will leave some groups without protection, and others feeling they have been miscategorised. Draw it too loosely, and people who are not objectively underprivileged will be covered by it. Employers will struggle to interpret their legal obligations. It is easy to imagine poorly-drafted legislation giving rise to significant satellite litigation, bringing the new protected characteristic, and potentially the Equality Act itself, into disrepute.
Nobody who cares about combatting the deeply-engrained problem of class prejudice would want this. Thankfully, there is an alternative proposal, and we believe it deserves serious consideration.
It’s a relatively simple, but elegant solution: to introduce a new law making it unlawful to terminate someone’s employment or treat them less favourably on the grounds of accent, dress or appearance.
Such a change would protect the ability of employers and universities to recruit contextually. It would address many of the undoubted harms caused by class discrimination. And, potentially, it would help tackle other forms of discrimination too – such as discrimination on the grounds of obesity, for example.
This would mean the way someone talked would not be reasonable grounds for them failing a job interview without an objective justification. Our experience is that proving “objective justification” at an employment tribunal requires statistical or other concrete evidence. Employers facing tribunal claims would have to prove they had made the decision for a better or genuine occupational linked reason. This burden of proof is heavy enough genuinely to incentivise organisations to query their own behaviour and to change it. It would be a powerful corrective to an obvious form of class discrimination.
A zero-tolerance approach towards discrimination because of class, accent, appearance or social background would be genuinely effective at preventing the mockery of working-class accents, and the insidious belittling of those that voice them. Our fear is that a change in the Equality Act might inadvertently hold working-class workers back.
Chinwe Odimba-Chapman is a Partner at Clifford Chance and specialises in all areas of contentious and non-contentious employment law advising on a wide range of employment, labour and HR issues in the UK and on a cross border basis including: Tribunal and High Court litigation; executive recruitment, remuneration, grievance disciplinary and dismissal; restructuring/insolvency redundancies and collective matters; public and private M&A, outsourcings and employee transfers.
Raphael Mokades is the founder and Managing Director of Rare, the award-winning leaders in diversity graduate recruitment. Founded in 2005, Rare has contextualised over a million graduate job applications.
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