(Please note: I wrote this on a Sunday night just after seeing the Guardian’s report. I reserve the right to amend it in the clear light of day when I’ve had a chance to think a bit more and see what it is that Labour actually announces on Monday)

I think I’m going to spend a good part of this year looking at Labour’s plans for employment law should it win the next general election. There are a lot of proposals that have been made – some modest and some radical; some workable and others rather less so. But we (probably) have plenty of time to look at them over the course of the year.

But I was a bit taken aback by the Guardian headline tonight: “Labour plans to extend equal pay rights to black, Asian and minority ethnic staff”. I have to say my heart sank.

The story opens:

“A Labour government would extend the full right to equal pay that now exists for women to black, Asian and minority ethnic (BAME) workers for the first time under radical plans for a draft race equality act seen by the Guardian.”

I mean – why? Is Labour under the impression that paying people less because of their race is currently legal?

One of the anomalies of discrimination law – that should perhaps have been corrected when the Equality Act 2010 was introduced – is the separate treatment of contractual terms when it comes to sex discrimination. For complaints about pay (or any other contractual terms) women (or men) have to bring an equal pay claim rather than a more straightforward discrimination claim. This means finding an actual comparator – rather than a hypothetical one – employed on “equal work”. We have decades of case law on what equal work means and it is not a straightforward question. Equal pay is an all or nothing claim. Your work is either equal or it isn’t. If your job is worth 80% of that of your chosen comparator then you lose. It doesn’t matter if the comparator’s pay is more than twice what you are earning. No matter how disproportionate the differential, the fact that the two jobs are not equal defeats the claim.

It is true that in an equal pay claim there is no need to prove discrimination – but that doesn’t matter much in practice. In reality, the employer will usually defend the claim by putting forward a ‘material factor’ defence. That just means there needs to be a reason for the difference in pay. If the reason is genuine then the question is whether it is discriminatory – either directly or indirectly. Most equal pay cases eventually boil down to the question of whether the pay is discriminatory. If the claim is won the claimant can get up to six years’ back-pay and there is no award for injury to feelings.

Suppose – under current law – an employer discriminates on the grounds of race when it comes to pay? Just as in an equal pay claim the question will boil down to whether the difference in pay is due to direct or indirect discrimination – but there will be no need to find a real-life comparator and the Tribunal could take into account a disproportionate difference in pay between two technically unequal roles. if the claim succeeds there is no cap on compensation and an award will be made for injury to feelings.

The Guardian says:

“The change, which would also cover disabled people, would mean that equal pay claims on the basis of ethnicity and disability were treated the same as those made by women who, under the existing law, have more stringent protections.”

I don’t think they do have more stringent protections. It is not at all clear that an equal pay claim is better than a discrimination claim. It is however undoubtedly more complex. Just try having a read of chapter 3 of Part V of the Equality Act – go on, I dare you!

I can see the point of merging discrimination and equal pay across the board, but that doesn’t seem to be the proposal here. They seem to want to keep the distinction between equal pay and discrimination – but make more people subject to it. I really thank that’s a bad idea.

Dual Discrimination

Oh and there’s more:

“The proposals, which the party will announce on Monday, would enact protections against “dual discrimination”, where people face prejudice because of a combination of protected characteristics, that were originally in the Equality Act brought in by Harriet Harman in 2010.”

A black woman who faces sexism and racism or a Muslim woman abused for wearing a headscarf, for example, would be able to bring one discrimination claim, rather than one for each protected characteristic.

Labour said this would have broader benefits for different groups of people, including women experiencing discrimination during the menopause, as well as easing backlogs in the tribunals system.”

This is just silly. Absolute nonsense on stilts.

Section 14 of the Equality Act is a bit embarrassing really. It has never been brought into force but it says that it is direct discrimination to treat somebody less favourably because of a combination of two protected characteristics. So if I treat you less favourably because you are a black woman then that would be discrimination.

But we don’t need S.14 to tell us that. It is already direct discrimination to treat somebody less favourably because they are a black woman – or a white man, or an older gay person, or a Muslim woman. Of course it is – how could anybody think otherwise?

Does anybody suppose that if a Muslim woman were to be refused employment the employer could defend a religious discrimination claim by saying “oh no, its only Muslim women we object to, Muslim men are fine”? That would be the wrong comparator. If a Muslim woman is treated less favourably than a non-Muslim woman would be treated then that will be direct religious discrimination. Just think about it. If, when choosing between two women, the employer would choose the one that is not a Muslim then OF COURSE that is religious discrimination. It will also be direct sex discrimination if a Muslim man would have been recruited. This isn’t difficult. Dual discrimination is not a problem. There has never been a case where it has been a problem.

The idea that a claimant in these circumstances has to bring two separate Tribunal claims is gloriously wrongheaded. There is only one act of discrimination and only one claim even if it can be expressed in two different ways. As for the point about easing the backlog – bless them – this is not going to replace the need for some proper investment in our courts and tribunal system so I hope nobody has been building Labour’s hopes up about that.

There are all sorts of things that a new Government could do to tackle structural racial inequalities in our society. In the employment sphere ethnic pay gap reporting seems an inevitable development (I’m sceptical but that’s another story). I’d also be in favour of having a good look at the Equality Act and seeing what we can do to improve it. But these two proposals show a worrying lack of understanding of how discrimination law works. I hope that what we have from the Guardian is just a garbled report of some initial ideas that will be refined and improved as the time that Labour forms a government (presumably) draws closer.

This is going to be an interesting year.

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