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.
A Range of Reasonable Responses 
I agree (and, thank you, Darren for writing it, since you’ve saved me posting something very similar but not as good!)
In 10 years of supervising cases, including quite a few race discrimination cases at the Free Representation Unit, I’m struggling to think of any indirect ones, outside the context of the mistreatment of vulnerable migrant domestic workers (where there are very particular issues about where you draw the line between direct and indirect discrimination and certainly aren’t the sort of cases Jon is talking about).
The vast majority of the claims we deal with are direct or harassment. And I think that reflects the day to day work of the tribunal.
But, fundamentally, I think the issue is that anyone who genuinely believes ‘Racism, as the denial of equality of opportunity, is now a thing of the past.’ is simply wrong and working from a completely confused world view.
It’s also too easy to fall into the trap of thinking ‘Things have got better, the really nasty stuff is a thing of the past’. Which also isn’t true. Things have got better and the really nasty stuff is much rarer than it once was. But it still goes on.
Anyway, even if we’d got racism in the workplace down to the comparatively subtle stuff, that’s hardly the point. It’s no defence to say to someone ‘You’re not getting the promotion you deserve because you’re black and we generally assume our white employees are smarter. But, hey, be grateful. We’ve really cut down on the verbal abuse recently.’
I welcome the fact that Darren has responded to my article and done so in a way that helps to take the debate forward. The thrust of my article was to explain how ‘racism’ has been redefined with the result that workplace race laws now challenge the workplace as a meritocracy. I’ll confine my response to these two points.
‘Racism’ redefined
Darren doesn’t give any examples of workplace discrimination and appears to have little first-hand experience of it (‘there are many better qualified than me to talk about the reality of racism today’). He concedes that ‘discrimination may not be as overt as it once was’ but he argues that ‘it has not gone away’.
Having done the Google exercise that Darren suggested it fortifies me in my view that there are not that many race discrimination claims that demonstrate racism as being a denial of opportunity on the basis of race. The race discrimination claims I saw relate to practices that employers intended to be legitimate management processes and which, when scrutinised by a Tribunal, were faulted on grounds that happened to impact on a BME person (eg a Polish employee instructed not to speak ‘in her own language’).
Finding the racism in nearly all modern-day claims is only possible if racism is redefined to embrace a management practice intended to be legitimate that happens to be to the detriment of a person who is BME. Only the expert employment lawyer or consultant can now predict the outcome of most race discrimination claims since these experts are usually the only ones who understand ‘racism’ the way employment law does. Consider the contrasting fortunes of these two cases (search for ‘no Polish on the job’ on http://www.foreignersinuk.co.uk) that came up on Darren’s Google exercise and then try and explain with a bright-line principle why one was categorised as a fair management practice (employers speaking in Punjabi or Urdu) and the other as a racist management practice (employers outlawing Polish). Nowadays, ‘racism’ emerges from a micro-scrutiny of the workplace with racially sensitised eyes.
There is a reason why ‘race discrimination’ claims are now better described as either ‘discrimination’ or ‘equality’ claims. Note how Darren prefers to talk of ‘discrimination’ (he used the word 38 times) rather than ‘racism’ (used twice). He supports the existing law because it no longer, in substance, outlaws ‘racism’ but, as he says, ‘it requires an absence of discrimination’. It’s not just that racism is not ‘as overt as it once was’, it’s that racism is no longer ‘racism’ in any meaningful way.
Challenging the meritocracy of the workplace
Darren does not address the undesirable impact that workplace race laws have on the meritocratic nature of the workplace. Indeed, Darren cannot contemplate there being any undesirable impact as he sees the need for race discrimination laws as analogous to the need for laws that criminalise bank robbers (an even worse analogy than was used by the judge in the Essop case).
Laws that are in substance about outlawing discrimination per se (a desirable objective according to Darren) and promoting equality, directly challenge the workplace as a meritocracy. If employers are to recruit, promote and pay on the basis of merit then they need to be given freedom to make discriminating management decisions.
The Essop case highlights the problem: a practice (passing an exam) that was obviously introduced for legitimate management reasons and which the judge had no reason to find to be racially biased (judgment, para 9) was challenged on the grounds that it had a differential impact on BME staff of a certain age. In the eyes of the law this practice will be unlawful if the employer cannot show that it is a proportionate means of achieving a legitimate aim. Many employers when faced with the expense, the uncertainty of outcome and the catastrophic consequence of being dubbed ‘racist’ will be under a considerable pressure to avoid such a claim from ever getting off the ground. To make this point is not ‘an old trick’ it is to face up to the reality of the workplace. In the 21st Century race-discrimination laws challenge the meritocracy of the workplace and it’s time to scrap them.
First of all Jon – thanks for responding.
I responded to your spiked article because of your very specific claim that direct discrimination claims have all but disappeared in favour of indirect discrimination claims. This claim is completely wrong. This is not a matter of judgment but of objective fact. It’s no good reading about cases and thinking ‘that seems like indirect discrimination to me’ or coming up with your own definition of what you think indirect discrimination is. A claim is either brought under S.19 of the Equality Act or it is not. In relation to race, such cases are unusual. Let’s look at the two cases you refer to:
The Polish language case ( http://www.bailii.org/uk/cases/UKEAT/2012/0270_11_2802.html ) was a direct discrimination claim because the instruction was specifically about the claimant’s own language and employees of other nationalities were not subject to the same rule about their own language. The manager was found to have singled her out on the grounds that she was Polish.
The case involving Punjabi or Urdu was a case alleging direct discrimination and harassment. The Tribunal found that in overhearing a conversation in a language he didn’t understand the claimant had been treated no less favourably than anyone else, and had not been so upset or uncomfortable that harassment was established.
Neither case was a claim about indirect discrimination. I don’t care if you think the discrimination seems a bit ‘indirect’ to you, what matters is how the claim was actually brought. Incidentally, I surely don’t really need to explain to you why one claim succeeded and the other failed. There is a big difference between overhearing a conversation you don’t understand and being instructed not to hold any conversations in your own language when other non-UK employees are not subject to the same rule.
Your point about whether discrimination cases are about ‘racism in any meaningful way’ is a straw man. The legislation has never used racism as a benchmark. I used the word discrimination not to shift the debate onto obscure territory but because it is the correct term and always has been. It is of course a defined term and when we use it in this context it is important not to get confused with discrimination as a normal English word. Yes managers can make discriminating decisions – who has ever suggested otherwise? All decisions relating to recruitment and promotion will involve discriminating. The question for discrimination law is whether the discrimination is ‘because of a protected characteristic’ or fits one of the other categories set out in the Equality Act.
You keep getting stuck on the Essop case. The fact that the Langstaff J said that there was no reason to think that the test was racially biased is not as significant as you make out. This was a case about the nature of the disadvantage given the accepted fact that the test caused a particular disadvantage to people who shared a protected characteristic. You are entitled to think that tests which cause such a disadvantage are unobjectionable unless they are overtly racist, but it was simply misleading of you not to mention in your original article that the employer can defend the test – despite the disadvantage it causes – if it can show that it is a proportionate means of achieving a legitimate aim. By not mentioning that fact you made indirect discrimination appear to be an arbitrary and capricious limitation on business. I don’t think it is. In a meritocratic workplace the employer should be able to show that a test is an appropriate way of judging an employee’s merit. You may disagree.
This brings me to my final point. There is nothing in the law that prevents an employer from appointing on merit if they want to. Indeed private sector employers are free to appoint on whatever ground they choose within the law. That law, such as it is, never prevents an employer from appointing the best person for the job. In fact its main thrust is that employers should do just that. The most that can be said is that an employer will be required to justify practices which cause a particular disadvantage to groups sharing a protected characteristic.
That is why writing an article claiming that employers are driven to make decisions based on hitting some sort of diversity quota is so pernicious. By misleading people about the way the law works you undermine support for reasonable measures aimed at eliminating discrimination. If you are going to argue that the race discrimination laws should be scrapped, you should at least try to understand what they are first.
Oh and do please read the other comments on this post – they make some good points.
“If employers are to recruit, promote and pay on the basis of merit then they need to be given freedom to make discriminating management decisions.”
What point is Jon making here in support of his argument?
All recruitment, promotion and decisions on pay ( insofar as it relates to individual effort, skill and performance) is ‘discrimination’. The point surely for employers is that taking such decisions on a basis which relates purely to personal identity characteristics ( as opposed to the individual’s performance in a selection process or on the job) is not only unjust morally and legally, it constitutes ‘bad business’. If decisions on these matters are made by employers on the basis of subjective opinion and/or stereotypes and, as a result, individuals are treated less favourably how does this not constitute ‘racism’, ‘sexism’, etc.?
If the law requires a level playing field for all workers and penalises employers who ‘break the rules of the game’ why should the victims of these injustices not have recourse to the courts to seek compensation?
No one is suggesting that legitimate and business-based discriminatory decisions should be outlawed – simply those which are triggered by individual or institutionalised prejudice.
I thought I might add to this debate. There are four points I would like to pick up on.
First, Jon, you wrote “Darren doesn’t give any examples of workplace discrimination” (prior to a non sequitur). I thought it might assist if I cited a couple.
In Southern Cross Healthcare v Owolabi [2012] UKEAT 0056_11_0202, a direct discrimination claim, the EAT discussed the tribunal below’s findings of fact that the black claimant had been referred to by a colleague as a chimpanzee. There was also discussion of a separate “monkey incident”.
In Derby Specialist Fabrication Ltd v Burton [2000] UKEAT 817_99_2809, the EAT made the following observations [1-2]:
“The respondent, who is black, was employed by the appellant as a welder between 1989 and May 1998. At some stage he was transferred from site construction to the Tube Shop. The Employment Tribunal found as a fact that:
“At all material times racial abuse was widespread throughout the Tube Shop. No action was taken by the respondent to check this. Indeed Mr Whalley, the personnel manager, did not appear to recognise the climate of racial abuse as a problem. He failed to understand that it might be offensive for a black worker to be likened to a monkey and for another to be described as a “black bastard”.”
The tribunal’s findings also included the following:
“In or about April 1996 the applicant asked Mr Moore, then training school instructor, why he had failed a test. Mr Moore said, “I am not having a jungle bunny working in the Welding Shop”. The applicant was offended and upset by this incident.””
I think you will agree that these examples of workplace discrimination are particularly clear-cut, even to those with racially insensitive eyes. I would also note that the above emerged from the most cursory of searches; I am quite sure there are further examples in the intervening years between the judgments.
Second, Jon, you wrote “Finding the racism in nearly all modern-day claims is only possible if racism is redefined”. This implies you agree that there are some modern claims where it is unnecessary to “redefine” racism in order to find racism. If that is so, what is to be done with those cases if workplace discrimination laws are repealed?
Third, the following point is questionable:
“Laws that are in substance about outlawing discrimination per se (a desirable objective according to Darren) and promoting equality, directly challenge the workplace as a meritocracy. If employers are to recruit, promote and pay on the basis of merit then they need to be given freedom to make discriminating management decisions.”
It is questionable because it implies that managers are not free to make discriminating decisions. They are, just not on the grounds of race. The laws are not in substance about outlawing discrimination per se (see above examples and the discussion of justification).
Last, and more broadly, I wonder: Jon, do you believe that racism is no longer a social phenomenon? Or, if you do not think that, is it that you consider the workplace to be peculiarly insulated from it?
I’ve been watching this thread with interest. What I find most concerning is that a reader of the article in question might assume that since Jon is a barrister he must be speaking the truth. Those who truly understand and deal with discrimination claims (as I have done for many years) immediately see the flaws in his arguments (see the well expressed views above). I am no more qualified to write an article on social housing law (Jon’s specialism) than he is on discrimination law. If the publication wanted to promote the repeal of the race discrimination laws, it should have ensured that the writer actually understood the laws in question.
It is really quite simple for employers to avoid discrimination claims – select/promote/treat staff based upon merit (not influenced by a protected characteristic unless this is expressly permitted by the act), consider and monitor whether any seemingly non-discriminatory practices do impact upon particular groups and do not allow a culture of discrimination amongst your workforce.