The tyranny of equality laws
If you have old-fashioned views or use archaic language at work, expect to be reprogrammed by the new overseers of equality.
‘Balancing religious and other rights is horrible work, which somebody’s got to do. Strasbourg reminded us on Tuesday that it does it as well as anyone else.’ This was how a Guardian editorial summed up the Strasbourg court’s judgement last week on discrimination claims brought by four devout Christians. The Independent claimed that the judgements showed the court’s ‘usefulness and general good sense’.
The cases involved four people sacked for expressing religious beliefs in various ways: a registrar, Lillian Ladele, who refused to officiate at same-sex civil partnerships; a relationship counsellor, Gary McFarlane, who didn’t want to work with gay couples; a nurse, Shirley Chaplin, who refused to stop wearing a small crucifix on a chain; and an airline employee, Nadia Eweida, who refused to stop wearing a small cross. Eweida won her case; the other appeals were dismissed.
While the liberal broadsheets supported the judgements, the Daily Mail advanced a Eurosceptic stance by denying that the European Court of Human Rights (ECHR) in Strasbourg was the right place for religious-freedom cases to be determined. But the newspaper didn’t question the right of domestic courts to determine such matters. Indeed, the Mail argued for more court scrutiny, specifically of the medical evidence for the health-and-safety justification given by National Health Service (NHS) bosses for denying nurse Shirley Chaplin the right to wear a cross. Finding a mainstream commentator who questions the right of courts, domestic or European, to rule on workplace behaviour is as hard as finding a uniformed nurse with a visible crucifix.
The ever-expanding world of equality
In recent years, governments have subjected the workplace to a slew of equality and anti-discrimination laws. Now codified in the Equality Act 2010 and supplemented with human-rights legislation, the reach of the legislation has enabled Muslim schoolchildren to claim a right to wear a jilbab and other schoolchildren have claimed the right to style their hair with cornrows. Gay couples have used the act to challenge bed-and-breakfast owners who turned away unmarried guests. The legislation has also been used by many campaigners to challenge welfare cuts, library closures and university tuition-fees to name but a few.
It is not always immediately apparent what these challenges have got to do with equality or anti-discrimination laws. But the legislation readily lends itself to support those who claim to have been subjected to some unfairness on the grounds of age, disability, race, religion or belief, sex or sexual orientation. The ambit of these laws is so wide that there is scarcely a workplace or service-delivery decision that cannot be challenged under the Equality Act.
This is not to say that these challenges always win. Nobody keeps statistics and, in any case, many challenges are compromised before they become public, whether or not they have any merit. The 25 per cent success rate from the four applicants in last week’s cases may even have been higher than normal. What matters is that employees, employers and citizens generally are constantly subject to the threat of legal action under the Equality Act. The possibility of a claim under the Equality Act is there when an employer or school draws up a dress code, when an employee addresses a colleague, or when a service provider makes a spending cut.
The constant threat of a claim
A recent survey of 1,000 workers by the solicitors Allen & Overy highlights the extent of the problem in the workplace. Some people refer to a person who is wholly or partly of non-white descent as ‘coloured’; indeed, some people describe themselves as such. When asked if the term ‘coloured’ was offensive, 50 per cent of respondents said it was, but 38 per cent said it was acceptable. The journalist who wrote up this survey for the Law Gazette under the heading ‘Office banter is not black and white’ noted how the black person who was deeply offended at being called coloured could bring a harassment claim if the conduct was unwanted and causes offence. He also noted that the average tribunal award for race discrimination is £102,259, payable not only by the employer, but in some circumstances shared by the employee as well.
Six-figure damage awards may require pretty serious and persistent conduct, but that misses the point. The employees who have not accepted modern modes of address could find themselves subject to discrimination claims that would cause considerable worry and anxiety regardless of whether the claims succeeded. The Law Gazette article also noted how the gesture of anonymously giving a colleague a St Valentine’s Day gift can amount to sexual harassment where the conduct is unwanted. The lovesick optimist who persists in his pursuit could land his employer in an employment tribunal where the average award for this conduct is £9,940. So the unwanted box of chocolates could turn out to have been very expensive. The price we all pay is even greater, although impossible to quantify, when ordinary human interaction can become the subject of expensive and potentially ruinous litigation.
The four cases ruled on in Strasbourg were about weightier matters than office banter or boxes of chocolates, but they show the extent to which the workplace has become a legal hot potato. It is a strange world that allows an employer’s uniform code to result in hearings before an employment tribunal, the Employment Appeal Tribunal, the Court of Appeal and then the European Court of Human Rights. It is even stranger to note that Ms Eweida’s claim against British Airways (BA) failed in each of the three domestic courts, for different reasons each time, but succeeded by a five-to-two majority in Strasbourg. And it succeeded not because of any bright line of principle that could in future guide employers to know whether their dress code was lawful or not. It succeeded in Strasbourg because ‘the court has reached the conclusion in the present case that a fair balance was not struck’. Equality legislation requires all employers, big or small, to throw themselves at the mercy of judicial discretion.
The decline of discrimination
Eric Pickles, the Lib-Con secretary of state for communities and local government and the minister who has criticised some court decisions for curtailing religious freedom, said he supported the Strasbourg court’s dismissal of the claims brought by Gary McFarlane and Lillian Ladele. McFarlane lost his job with Relate after saying during training that he would not be able to provide sex therapy to gay couples. Ladele was disciplined by Islington Council in north London when she refused to conduct same-sex civil partnerships. Pickles supported these decisions with reference to the need to provide public services on a non-discriminatory basis and he proceeded to say that he could just remember the days when in Bradford there were signs saying ‘blacks need not apply’. Pickles is 60 years old, so is referring to signs that appeared more than 40 years ago.
In her introduction to Blackstone’s Guide to The Equality Act 2010, Baroness Helena Kennedy QC notes that ‘when the model for our anti-discrimination laws was first developed, a sign saying “no Irish, no blacks, no dogs” in the window of a bed & breakfast, or a job advert saying “women need not apply” were commonplace around the country’. Similarly, she notes ‘offensive descriptions of, and hostile attitudes towards, disabled people were also commonplace’. But she, like Pickles, is talking about a different era.
Society has moved on and the attitudes that Pickles and Kennedy refer to as existing decades ago no longer exist, save in the eccentric. Those attitudes no longer have any social force. The misguided office worker who uses inappropriate office banter is a more likely target for a discrimination claim today than the employer who would turn away ‘blacks’. And where a Christian hotelier turns away a gay couple, it’s a safe bet that there will be other hotels and guest houses up the road that will not. This is not to say that all forms of unjustified discrimination have been eradicated, but it is to say that the need for the widespread intervention of the law as sanctioned by the Equality Act is anachronistic and creates far more problems than it solves.
Why the interest in equality today?
Ironically, as the need for anti-discrimination laws has waned, so governments of all persuasions have wedded themselves to an ever-expanding Equality Act agenda. There is as much chance of Eric Pickles repealing some equality legislation as there is of Gary McFarlane providing same sex counselling. Why?
The answer cannot be practical. Whatever the rights or wrongs of the BA decision, nobody can doubt BA’s efforts to accommodate Eweida’s religious beliefs. BA’s dress code had for some years caused no known problems to any employee, including Eweida, who for two years appears to have worn a cross concealed under her clothing without objection. When she complained BA offered her a temporary administrative position which would have allowed her to wear the cross openly without loss of pay. Yet despite those efforts, the Strasbourg court found BA’s decision unlawful. The lesson for employers is that to avoid legal challenges they may as well count angels dancing on a pinhead.
The amount of time and money tied up in drafting and implementing anti-discrimination policies is already substantial. The Allen & Overy survey found that 55 per cent of workers had read their employer’s ‘dignity at work’ policy (a figure I found surprisingly high). It then noted that ‘38 per cent of them had received training on it’ (ditto) in circumstances where an ‘all reasonable steps’ defence would require an employer to do more than just have a policy on a shelf or on its intranet. The report notes that workers ‘need regular training on its implications and their legal liability’.
And therein lies the explanation for today’s prevalence of equality legislation and codes. We live in an era where the powers-that-be do not trust employers, employees or any ordinary person – that is, you and me – to treat each other fairly. Neither do they trust organisations to provide services fairly. ‘Workers need regular training on dignity at work’ is code for saying that workers need to be re-programmed in how to think, talk and behave. Laws, anti-discrimination policies, codes of behaviour and training courses on ‘dignity at work’ become the order of the working day. The non-legal framework within which ordinary human behaviour has traditionally been negotiated is replaced with a legal one from on high. And for those who transgress: see you in court.
The many judgments that courts and tribunals will give on the many claims that are brought will do nothing to provide the clarity on equality legislation that employers understandably claim they need. There cannot be clarity to the many and diverse situations that arise in the workplace. Different staff for different reasons will always want to dress and work differently and for different reasons. It is endemic in equality legislation that the courts cannot establish rules of law that will enable people to know in advance what decision the courts will make. What equality legislation does is transfer power from the workplace to the courtroom. It takes power away from employers, employees and service users and vests it in judges. As I have argued previously, these laws also stifle any proper debate about the important issue of tolerance, religious or otherwise, by fostering intolerance.
The Guardian talks about the ‘horrible work, which somebody’s got to do’. I do not see ‘balancing religious and other rights’ as ‘horrible work’. I see it as an opportunity for there to be a genuine debate in the workplace and elsewhere about tolerance. Left to their own devices, and without the threat of legal proceedings, most staff would resolve their differences amicably. Somebody has got to do it, but it shouldn’t be the courts. The misanthropic argue otherwise.
Jon Holbrook is a barrister in London.
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