#16796 - Labour Discrimination - Labour Law

• Some discrimination inevitable in hiring process. EA aims to ensure it is on meritocratic grounds.

Contextual Introduction to employment equality law

• Negative obligation: do not treat one class differently from another. Paradox – treat unequal’s as equal.

• Anti-discrimination laws impinge upon the proper functioning of the labour market. Proscriptive obligations to interfere in the employer’s freedom of contract.

• Taiwo v Olaigbe (2016)- EA limits freedom of contract to protect specified groups who have historically been discriminated against by those suppliers, shut out of access to employment for irrelevant reasons which they can do nothing about.

• Cabrelli:

1. Equality doesn’t explain anti-discrimination law coz not it’s not just about ‘treat like groups alike’ e.g if there’s been structural discrim over a sustained period of time that the group is inherently disadvantaged in workplace e.g women we want to treat them.

2. Equality assumes we are all identical- not true at all. Hayek argues that factual equality being a justification for measures based on principle of equality is absurd, the calls for equality is coz people do possess inherent differences. He says the pursuit of liberty may be wholly detrimental to the achievement of equality so if emphasis is pushed to promoting equality, this is at the expense of liberty.

• Allen v Flood- ‘A man has no right to be employed by any particular employer and has no right o any particular employment if it depends on the will of another’.

Anti-discrim law is the antithesis of freedom of contract: says that some grounds fro private decision are so improper that it is both immoral and illegal for the gov to allow ERs to use them in deciding when to hire, retain, fire or promote workers.

Against anti-discrimination laws:

• Epstein – curtailment of employer liberty. Distorts markets. Intervention is wholly misguided.

• Four arguments can be made in support of Epstein’s view (that it should be left to the free market):

1. Market can resolve problems. Discriminatory employers forced out of marketplace as (a) less efficient as hiring worse people ‘bigots are weak competitors, the market will drive them out’-eg not hiring a Cambridge educated female coz she’s a womenER would lose out when another firm hires them! (b) reputational damage from discrimination.

• Schwab – disputes this coz if enough discriminatory employers exist, discrimination will still occur. Similarly profit-maximising ERs in competitive markets will cater to the discriminatory tastes of EEs or customers e.g if some customers will pay less for a service from a black employees then they become less valuableresult could be segregation/discrimination.

2. Becker – What may appear to be sex discrimination is in fact the wage and occupational differentials between the sexes being a manifestation of investment made by women in their human capital in the labour market. Lifestyle choices they have made affect their worth e.g to take time of for kids/housework and women more tired if doing work + housework whereas men more productive @ work coz when not at work they’re just doing leisure.

• Against this: it’s ingrained institutional dynamic which assumes only females can undertake childcare chores but men can perform these as effectivelyanti-discrim laws promote a more even distribution of responsibility for childcare b/w men+ women and helps reduce institutional perception that female labour is inferior to male.

3. Posner – Discrimination laws self-defeating. Costs outweigh benefits (which are illusory). Employers will replace female workers with capital if they think women are unproductive. It’s better for ER to hire discriminatorily then face a law suit coz these are rare and damages in the suit are usually small coz it’s the diff b/w what she currently earns and what the wage would be in that job (normally not that diff). Discriminatory firing damages are high so in that case ER encouraged to take on less of those staff in first place. If more females (who are unproductive)higher costs so could lead to overall reduction in wage levels across all EEs or increased consumer prices.

• However this assumes all ERs operate in a perfectly competitive free labour market and they’ll respond rationally to all situations they encounter in that market.

4. Unjustified exercise of state power contradicting neo-liberal philosophy – anti-discrim laws is state neutrality beyond corrective justice achieved by law of contract, tort etc, instead it is a redistributive nature.

• However this overlooks social costs imposed on society by failures in the operation of labour market e.g social security benefit payments.

Designing a framework: exploring the theoretical justifications and potential policy objectives

Shows formal equality, no account taken of differences, treat all equally.

• Formal equality: personal autonomy, state neutrality, procedural justice. Not concerned with results. Just that like is treated with like. Statutory notion of direct discrim understood to represent the statutory notion of formal equality.

• Criticisms of formal equality:

• Westen – Requires external value judgment as to which groups are ‘alike’. ‘It tells us to treat like people alike; but when we ask who ‘like people’ are, we are told they are ‘people who should be treated alike’. The ‘comparator’ implicitly predetermined to be a male.

• Honeyball- Argues the comparator should be self-comparison (e.g same person minus the discriminatory factor e.g racial characteristic).

• NB current law is that there does need to be a comparator (s23 EA).

• It is inherently individualistic- elides group-based characteristics attributable to individuals and relies on an indivudal-litigation-driven model to achieve equality. Negative laws so claimants have to personally vindicate their legal rights in a tribunal or court.

• Treatment just has to be same as comparator – this means it’s entirely legal for an ER to treat claimant and comparator equally badly level down not level up of protection.

• Substantive equality: dignity, democratic participation, redistribution. Certain groups should be treated differently from mainstream in order to enable them to overcome embedded structural disadvantages. Eg two boxes to stand on in the pic.

• Equality of opportunity: Anti-discrim laws to make level playing field (says the disadvantaged effectively start further behind in the race). Gets you to start at same position then based on merit so rejects concept of quotas or targets whose aim is of equality of outcome. This would be positive action to encourage ppl to get to same starting point.

• Cavanagh –against equality of opportunity coz jobs can’t be shared so everyone gets an equal chance at becoming unequal.

• Equality of results: Encapsulated by indirect discrimination –ensure that application of an apparently neutral criterion does not disproportionately adversely affect an individual falling within a protected group.

• However, can always be justified by business requirement etc.

• Those on mat leave getting more favourable treatment than ordinary workers not on mat leave= substantive equality.

• Criticism of indirect discrim:

1. Always necessary for individual to show that effect of applying those criteria leads to individual and group disparity when compared with a comparator falling within the advantaged group.

2. ER is afforded the opportunity to justify disparate impact showing they had a legit business requirement and had a real need to apply the criterion.

• Positive discrimination: It is more favourable treatment of a protected constitutency. Paradoxical given that it is a manifestation of an equality policy.

• It’s arguably a form of social engineering/redistributive justice – attempt to ensure all groups represented based in proportion to their population (means pattern of distribution of jobs in accordance with a predetermined end).

• Justified on basis that the dignity, identity, autonomy+ self-worth of individuals in that disadvantaged group should be respected.

• It involves reverse direct discrim.

• Collins – positive discrimination in employment such as police may still have a role – representativeness to the population they service is a vital ingredient in ensuring success of service. Also in cases where legitimacy may depend on diversity o representation, a systeme favouring those under-represented minorities who are qualified job may be justifiable.

Eligibility to claim

1. Personal

• Part 5 EqA 2010 covers:

• employees and job applicants (ss39 and 40)

• contract –work (s.41) – NB Abbey Life v Tansell [2000] IRLR 387

• the police (ss42 and 43)

• barristers, advocates (ss44-47)

• office holders (ss49-52)

• professional and trade qualifications (ss.53-54)

• vocational training and employment agencies (ss55 and 56)

• trade organisations (s.57)

• official business of members (s.58)

• ‘Contract workers’ also are covered (s.41 EA) – but difficult to show contract with principal as opposed to agency.