On departing office in 2010, Labour’s Treasury chief secretary Liam Byrne infamously left a note pointing out that there was no money left. It’s a pity that the incoming coalition government did not have its attention drawn so explicitly to another poisoned inheritance – that of New Labour’s swansong legislation the Equality Act 2010 (EA).
Had the Conservative Party in opposition been less dazzled by the impact of Tony Blair and Gordon Brown, it might have noticed the radical intent of an Act obligating private and public sector employers not just to prevent discrimination but actively to ensure equality within our workplaces. This fundamental gear change has foisted ever more regulation on business and the public sector alike, necessitating the stultifying architecture of EDI and with it the intrusive creep of the lanyard-bearing HR class.
Some 15 years on, we are at last beginning to see some pushback against the logic of an Act that treats people primarily not as individuals equal under the law, but rather as representatives of a particular identity group defined by their shared ‘protected characteristic’. The contradictions and inevitable divisiveness of this legislation have been exposed by the high-profile conflict between women’s rights and trans rights. While some hail the EA as offering protections in this fight, others see the genesis of that highly toxic clash within the legislation itself, with its activation of competing interests whether based on sex or reductive definitions of race. Indeed since 2017, when records went online, there have been well over 225,000 employment tribunals seeking claims under various EA criteria.
Hoping to inform growing debate about the Act, the campaign group Don’t Divide Us, with which I am involved, has produced its latest report: ‘The Equality Act Isn’t Working’. It concentrates on the practical effects of the EA on the workplace by studying judgments from 5,500 tribunals dealing with claims of racial discrimination. Its co-author the human rights and employment barrister Anna Loutfi presents a forensic critique of the Act and its accompanying Public Sector Equality Duty requirements. Even if well-intentioned, the transition from sanctioning discrimination to having actively to enforce equality has created a legal quagmire in which the traditions of English common law are adulterated with elements of top-down continental-style codification. The legislation effectively coerces employers into a political project, while leaving tribunals increasingly having to make judgments according to subjective criteria associated with concepts of ‘lived experience’, ‘microaggressions’ and the plaintiffs’ perceptions of prejudice.
It’s no wonder that employers have scrambled to extend EDI policies, many of which go further than the law, when faced with the Act’s requirements for ‘positive action’ to eliminate discrimination. The report’s other co-author Alka Sehgal Cuthbert reflects on the inevitable implications for employees too, whose interests may now be better suited by investing in their own narrowly-drawn racial identity, rather than as common workers within the joint endeavour of their shared workplace. Thanks to the way the Act simultaneously outlaws racial discrimination and harassment while justifying preferential hiring and promotion practices, to meet the mandatory requirement to promote equality for marginalised racial groups, it creates not just a challenge for the courts but also a cultural one.
Many of the disputes featured in the report appear to be the consequence of these contradictory workplace tensions. But anyone wanting to read into it a political message about white Brits being disproportionately discriminated against or even the reverse, to see confirmation of structural racism against any particular minority group, will find no such obvious pattern emerging. Of all the cases between 2014 and 2024, only 5% of claims for race discrimination were upheld in employment courts. What this indicates is that within a multi-ethic society with mass immigration, it is at least as likely that the EA heightens racialisation and promotes a culture of easily weaponised offence-taking as it is to be tackling genuine discrimination and prejudice.
Nevertheless, while still claiming to be intent on boosting growth and productivity, Labour intends to go ‘further and faster’, to borrow Keir Starmer’s favourite expression, in adding new obligations to record and report so-called racial and ethnic pay gaps. This is fraught with problems of definition and proof of causation, and rather than turning to good management to deal with workplace disputes, this is likely only to increase the recourse to law.
After the BLM riots, we saw corporations rush to burnish social credentials with ever more EDI commitments, perhaps convinced this could boost their bottom line. But the evidence for such lofty claims, even from the esteemed consultants McKinsey, has since been comprehensively undermined, particularly by the work of London Business School academic Alex Edmans. However, there is at least one area where opportunity is furthered by equality legislation: since 2017, the number of employment tribunals lodged annually has doubled. For lawyers and human resources professionals, an expanding jobs creation scheme is well underway. But at what cost to traditional codes of workplace civility, to the health of our economy and to our wider social cohesion?
‘The Equality Act isn’t working: Equalities legislation and the breakdown of informal civility in the workplace’, is published by DontDivideUs.co.uk.
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