Is Anti-Discrimination Legislation in Employment Still Necessary?

I have just read a very interesting article on the notion of what denotes indirect religious discrimination in the workplace, which you can find here:  http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx

It got me thinking that, perhaps, there is no longer any real need for anti-discrimination legislation in an employment law context given that society has now moved on so much in the last 50 or so years that the notion of what is “reasonable” and “unreasonable” conduct in any given situation is almost universal.

The “reasonableness” test is already one which is used in many types of employment claim.  For example, in unfair dismissal claims, even if an employer can show that he had a potentially fair reason to dismiss someone, the tribunal still has to consider whether it was objectively reasonable for him to dismiss for that reason.

Similarly, in discrimination cases, employers have a duty to make “reasonable adjustments” to accommodate people who are disabled for the purposes of the Equality Act 2010.  Tribunals are also very experienced at considering reasonableness in this context.

For that reason, would it not be sensible to simply make legislative provision for employers to act reasonably in their decision making and conduct when hiring, employing, remunerating, promoting and dismissing employees?  Do we not now universally understand as a society what does and what doesn’t amount to fair and equal treatment?

I’d be interested to hear your thoughts on this.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

3 Responses to Is Anti-Discrimination Legislation in Employment Still Necessary?

  1. Fiddling with the law is usually likely to result in the law of unintended consequences in this case a re-defining in the band of reasonable responses which currently governs unfair dismissal.This is employer friendly (for good reason) but would almost certainlynot be acceptable to Europe or most people in the UK who understand discrimination
    Disability discrimination is an interesting example. It should not be about discrimination but reasonable adjustments. Even that is fraught with traps as what is reasonable for large employers will often not be reasonable for SMEs

  2. Howard Lederman says:

    October 8, 2012

    Everyone:

    Anti-Discrimination Legislation in Employment remains necessary. Many employers still harbor prejudices against people different from them–whether based on race, religion, disability, sexual orientation, or other. To combat these prejudices, the law needs to forbid such prejudices from infliencing employment decisions loud and clear.

    Howard Lederman
    hylederman@wowway.com

    • My argument, Howard, is that discrimination is prima facie unreasonable conduct and therefore a simple test of reasonableness should suffice in order to provide protection from discrimination. In the UK, the Equality Act 2010 covers discrimination on grounds of sex and sexuality, race, age, nationality, religion and belief and disability. However, there is no legislation protecting people from other forms of discrimination. If there was a simple “reasonable conduct” test, then people would not be able to discriminate against people who are overweight, for example, as that would be unreasonable. I do, however, foresee problems with this. Firstly, in the UK there is no cap on the compensatory award for discrimination claims where there is a cap on unfair dismissal claims. I can see that a general test of reasonableness would make it difficult to distinguish what type of claim was being brought and would result in difficulties in assessing compensation.

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