The workplace is a meritocracy not a shelter for the lazy

The legislation perversely achieves the opposite of workplace fairness

Source - Daily Telegraph - 23/12/23

Those who publicly oppose the Equality Act can swiftly find themselves in hot water. 

Brought in under the last Labour government, it consolidated a series of earlier Acts, and was designed to eliminate discrimination in the workplace and elsewhere once and for all. Who could argue against that? 

Jacob Rees-Mogg, for one. The former business secretary recently called for it to be repealed, in order that workers could “get on with their jobs, not spend all their time and energy in moralistic progressivism”. 

And he’s right to raise concerns. The Equality Act has proved to be a minefield for employers. While its intentions are good, it is perversely achieving the opposite of true equality. 

It bites strongly at the hiring of staff, undermining the precious principle that recruitment ought to be meritocratic, but its impact is worse when it comes to dismissal. 

Let us suppose that a member of staff is not performing as well as they should and, in spite of feedback, seems incapable of improving.

Bosses will be faced with the prospect of having to sack this worker, raising the spectre of the employment tribunal, and that’s before the Equality Act comes into play.

Its ever-widening array of “protected characteristics” means a tribunal or court could rule that discrimination is behind the firing decision. This removes the compensation cap – currently one year’s salary or £105,700, whichever is lower – R for “unfair dismissal”. I put this in quotes because it is a legal, not a moral, construct. 

A lazy, ineffective, abusive, tardy employee probably deserves to be cut loose, but unless an employer completes a long and complicated feedback and warning process, the decision risks being deemed “unfair”.

Take away that compensation cap, and the sums involved could be huge. An estate agent won a payout of more than £180,000 after her boss refused to let her leave early to pick up her daughter from nursery, claiming sex discrimination. 

There are nine characteristics listed in the Act: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation.

And there is more to these categories than meets the eye: in 2020, for example, it was ruled that ethical veganism is classified under employment law as a “philosophical belief”, and therefore protected against discrimination under the Act. 

Further, because the Act does not specify the particular nature of the protected characteristic, this is open to interpretation by the courts or tribunal. Consider age: typically anyone between 18 and 65 is likely to fail the test.

But this means anyone outside those parameters has a real chance of winning their case. And what of, for instance, the push for women going through the perimenopause or menopause to be protected against “age discrimination”? 

Similarly, everyone possesses a race. But a member of the majority race in the UK, white British, may be less likely to succeed in any attempt to prove discrimination was behind their dismissal.

It was reported earlier this year that white men, derided as “useless white male pilots”, who failed in a bid to join the RAF were struggling to even have their rejected applications reviewed. Employers know all this.

They know that defending unfair dismissal cases at employment tribunals can be a time-consuming, expensive, potentially reputationally damaging roll of the dice.

And they know this to be the case even if they have done nothing but manage their workforce in an effective manner. Which might potentially mean they are more likely to fire “safer” (white, male, middle aged) employees if there is a choice.

And they may also be more likely to offer more generous severance packages if the employee looks likely to be able to persuade a tribunal or court that their dismissal was the result of discrimination. 

Employers should, of course, be punished if they treat a woman unfavourably because of her pregnancy. 

However, bosses have become so routinely judged to have discriminated against pregnant women if they make (adverse) changes to their contract that have nothing to do with the pregnancy, that many now have a self-imposed blanket rule that pregnant women cannot be fired (even if the reasons are nothing to do with pregnancy).

Some may ask whether this is really “fair”.

This is what bosses in modern-day Britain are now having to contend with. Millions of workers are now employed in legal and compliance roles, many of whom could be better deployed on the growth side of their businesses.

Meanwhile, the Equality Act has, in practice, become more of an Inequality Act. Are individuals entering a tribunal or courtroom really equal before the law, or does their appearance, their beliefs, their gender, have more of a bearing than the merits of their case?

What of the growing number of men who now feel that strict diversity policies aimed at creating a level playing field are instead pushing them out?

The Equality Act does not just cover employment, it covers many of the day-to-day interactions that we all have with our fellow citizens; the provision of services, both public and private, retail provision, education, transport and so on.

Much of the impact of these aspects of the Act are benign, and most fair-minded people would support them. But one must wonder whether the downsides were fully thought-out when this expansive piece of legislation was brought before Parliament, not least given there are clear circumstances under which the rights of one group may collide with those of another.

Consider, for instance, the backlash to Kemi Badenoch’s suggestion that the Act might allow organisations to bar trans women from single-sex spaces and events, including hospital wards and sports.

A simple amendment could be introduced to improve the Act: keeping the compensation cap in place under all circumstances. This could make a huge difference both to the volume of claims, and to the ability of employers to hire and fire on grounds of merit and performance, without having to fear financial ruin at the hands of lawyers and the courts.