Social Class Discrimination – Time for a New Protected Characteristic for a Post-Covid Britain?
27th November 2020
It is clear to us that the current economic situation is having a disproportionately damaging impact on working class employees, and in our view the (eventual) economic recovery is likely to reach some parts of the workforce (much) later than others. For many roles, the recovery will unfortunately come too late, and we expect many employees will need to retrain or even relocate to avoid unemployment.
Even pre-pandemic, a reported 50% of people believed that the Government should be doing more to improve social mobility, though in our experience meaningful discussion about social class is often omitted from diversity discussions. In light of this and the Trades Union Congress (TUC) 2019 push to tackle what the TUC identifies as persistent class-based discrimination, Michelle Chance (Partner) and Chris Warwick-Evans (Associate) explore the complex nature of the problem, how this could be addressed and identify some pragmatic (employer friendly) steps to consider taking now to help effect the change many of us want to see.
What’s the problem?
There is a (legitimate) widespread perception that social mobility is low and not improving, and as well as being unfair this is leading to wasted talent and potential remaining unfulfilled. Class-based discrimination is part of this problem but is of course far from the whole picture. In particular, the TUC reports that:
- Discrimination based on class backgrounds is still prevalent in the workplace today.
- Graduates with parents in professional and managerial occupations are around twice as likely as working class graduates to start on a high salary, no matter what degree level they attain.
- People from working class backgrounds still earn less than those from middle class backgrounds, even when they have the same qualifications and do the same type of job.
- Even when those from working class backgrounds enter professional occupations, they earn on average 17% less than their more privileged colleagues.
The Equality Act 2010
The Equality Act 2010 (as amended) (the “Act”) currently provides applicants and employees with protection against discrimination and harassment in respect of the nine protected characteristics (including sex, race, and disability).
Despite the broad protections in the Act (and recent case law confirming the surprisingly wide scope of some of these), the Act does not prohibit discrimination because of class or socio economic status (unless this overlaps with one of the existing protected characteristics). To this effect, direct discrimination because of class (such as not hiring an individual because they sound “common” or “posh” etc.), or indirect discrimination (such as only hiring those who have completed unpaid internships etc.) is not unlawful.
The missing protected characteristic? Should nine become ten?
The discussion above leads to the question as to whether “social class” should be added to the list of protected characteristics, so nine becomes ten.
If so, direct discrimination because of social class would become unlawful as would indirect discrimination unless it can be objectively justified. This would prohibit discrimination throughout the employment life cycle, from recruitment to the terms and conditions of employment (notably, remuneration), promotion/progression, training and termination.
The TUC also wants new legislation to make it compulsory for employers to report their “class pay gap”, and to introduce a legal duty on public bodies to make tackling all forms of inequality a priority (which the Government has declined to implement).
Would this work?
There are some obvious pitfalls, the most obvious being how class should be defined as there is no undisputed method of categorisation. Unless resolved (for example, through a proscribed or agreed form of categorisation which is easy to apply), this is likely to complicate applying any change to the law, though this should not be insurmountable.
There is also the complicating issue of “class fluidity” whereby people move from one class to another as their life circumstances change. Again, this shouldn’t be fatal as individuals change religion, gender and disability status, and this has not prevented the introduction and application of protections against discrimination because of those protected characteristics.
If class-based pay reporting is made mandatory, given the lack of a widely accepted method of class categorisation, in our view it is likely that self-definition would be adopted, for example with employees selecting their class from a list. Although this is imperfect, an additional burden on employers and also likely to be inaccurate (as not all staff will freely volunteer information in respect of their social class), this is likely to be achievable and should not be used to justify a blanket objection to reporting being introduced.
Some points to consider now
Although we are not expecting statutory (or regulatory) changes to prohibit class discrimination to be introduced in the short term, it makes good business sense at this stage for employers and managers to consider whether they are (unnecessarily) missing out on talented employees or the benefits that diverse teams can bring.
Further, if statutory or regulatory changes are introduced to prohibit class-based discrimination, it is likely to be easier to comply with any new requirements if good practice has already been embedded in the employer’s organisation. In this regard we recommend considering the following action points:
- Make sure recruitment is conducted in an objective and transparent way and, where appropriate, is contextual (i.e. takes into account the context in which someone’s achievements (such as academic results) were made, which in certain circumstances may include the performance of the school they attended and whether they were the first in their immediate household to attend university etc.).
- Make sure that if challenged you could justify the use of the chosen selection criteria.
- Ensure a range of staff with different backgrounds are part of a structured recruitment process.
- Ensure that your staff involved in the recruitment process have received appropriate training on unconscious bias and equal opportunities.
- If possible, avoid an implicit (or explicit) requirement for candidates to have completed unpaid internships as a way of demonstrating the skills, competencies or drive that hiring managers are looking for.
- Be aware that candidates whose parents do not have a network of professional contacts as family members or close friends may not have had the opportunity to “get their foot in the door” and obtain appropriate work experience through no fault of their own, as they will not have had the ready-made network of professional contacts that some middle or upper class candidates competing with them may have had.
- Try to make sure candidates from a range of universities/colleges (not just Oxbridge and the Russell Group) are aware of the opportunities available (bearing in mind that often candidates from a lower socio-economic background cannot afford to live away from home whilst at University and can therefore only attend local universities where the cost of travel is not prohibitive), and that job advertisements are worded in an inclusive way and are widely advertised across a diverse range of mediums, where candidates of different class and socio-economic backgrounds can easily access them.
- Consider if your diversity and unconscious bias training is sufficiently comprehensive and check it explicitly covers social class.
- Make sure your promotion processes and criteria are transparent and objective. Try to avoid requirements for an established professional network for those early on in their careers who, in the absence of a privileged upbringing, may well not have been given the opportunity to develop this. Try to avoid reliance on hard to define (or demonstrate) requirements such as “gravitas”. In our experience, socially privileged candidates are more likely to be viewed as having such qualities, but they are something that everyone can develop over time as their confidence and experience grows.
- If soft skills are an issue, consider whether mentoring and coaching could help address this rather than acting as an unresolved barrier to progression. “Polish” and “talent” are very different things!
- Consider how work is allocated and make sure this can be justified. If informal arrangements are entrenched whereby the same individuals always work together for no good reason, consider whether “blind allocation” (whereby work is allocated according to capacity, rank/skillset rather than name) would be helpful.
- Consider carefully who gets mentored or provided with opportunities which are likely to encourage progression and who gets invited to networking events which may give opportunities for promotion.
- Consider carefully if the culture is as inclusive as it should be. Some employers have formed “culture committees” with anonymous feedback from the office floor to help make their workplaces more inclusive, and in our experience this has generally been successful.
- Think about your team social activities and whether they are affordable for all members of your team at all levels. Do team drinks take place at expensive wine bars and private members’ clubs, rather than a pub?
- Make sure your bullying and harassment policy is comprehensive and prohibits bullying and harassment because of class or background.
- Exit interviews should be routinely conducted to get a clear understanding of why employees are leaving and can serve as an effective early warning system for unrecognised problems. Make it clear that what’s said at exit interviews will be treated anonymously and will not impact adversely on the individual’s reference.
These action points are also likely to reduce the risk of all types of discrimination and existing forms of employment-related claims, improve workplace culture and morale, so employers of choice may well have already addressed these satisfactorily. However, for others, significant changes may be required, particularly where behaviours and bias are unconscious. As is always the case, training, implementation and embedding change from the top down in a way which brings the organisation with you on the journey and attracts majority buy-in will be key.