I want to make one thing perfectly clear. I do not spend my time monitoring Duncan Bannyne’s activities with a view to correcting him every time he gets something wrong. I’ve never watched ‘Dragon’s Den’, which I’m sure is a splendid programme, and I know very little about Duncan Bannatyne himself. I have no doubt that he is a fine upstanding member of society, fun to be with and kind to animals. I’m sure his business skills are second to none and I will happily defer to his expertise on anything to do with running a business.
But he knows next to nothing about the Equality Act. I know this because he has written about it – twice. Once in the Daily Mail and once in the Daily Telegraph. Both articles show a woeful lack of understanding about both what the Equality Act says and also about what the law said before the Equality Act came into force on 1st October. Both articles also show a surprising lack of humility about the limits of his own expertise. Anyone reading the articles who did not themselves know much about the Equality Act would perhaps gain the impression that Mr Bannatyne had studied it closely before giving his carefully considered opinion. They would be wrong. I don’t know by what process these article were written – but a close study of the Equality Act was clearly not involved.
I’ve written about the Daily Mail article here on XpertHR where I also made some general points about how important it is to be accurate when describing new laws – and also of the harm that can be done by irresponsible and inaccurate stories. As far as the Daily Telegraph article goes, those comments still apply.
It is worth noting, however, that the main point that Duncan and I argued about (if you can dignify our twitter exchange with that name) has now been dropped from his argument. In the Telegraph he does not claim that employers can no longer keep the pay of individual employees a secret. I hope this reflects an acceptance on his part that he was wrong about that, rather than the need for the Daily Telegrapharticle to be shorter. Other claims persist, however, and have the potential to mislead. I have quoted some of the key issues that he raises below, and made my own comments in relation to each.
‘[The Equality Act] It isn’t guided by one principle but instead has lots of clauses that will cause lots of problems for employers.’
DB is absolutely right about one thing. The Act certainly does have lots of clauses (we actually call them sections, but let’s not quibble) – 218 of them in fact. How many problems they will cause for employers is less clear. The fact that the Act isn’t guided by one principle is true but who cares? The whole point of the Act is that it brings together lots of different pieces of legislation and deals with a huge variety of situations
‘Take the part on ‘Discrimination by Association’, for example;’
OK, first of all there is no specific provision on ‘discrimination by association’, it is merely part of the definition of direct discrimination in S.13. Importantly it is not new. Discrimination by association was already in force for race discrimination, religion and belief discrimination and sexual orientation discrimination. As a result of the Coleman case it was already being applied in the way in which the Courts interpreted the Disability Discrimination Act.
Discrimination by association is new, however, in relation to gender reassignment, sex, age and pregnancy. Will we see a flood of cases? Absolutely not. What sort of cases does Duncan think will be brought under this head? He explains:
if an employee thinks that he has missed out on promotion because the boss doesn’t like his friends or family, he can sue the company.
Utter nonsense! There would be a potential case if the employer objected to the religion of an employee’s family, or their race, but there could be no viable claim based on ‘doesn’t like’. I suspect DB uses this phrase because if he wrote ‘missed out on promotion because the boss doesn’t like the fact that his friends are black’ it wouldn’t seem like an unreasonable thing to complain about – and the purpose of the article is to argue that the Act encourages unreasonable claims.
In extreme cases, the employee might even make up a story but he is still innocent until proven guilty, while the employer is guilty until proven innocent. The onus is on business leaders to disprove even the most ludicrous accusations, which is a complete waste of time and resources.
This is a common misconception, made understandable by the fact that the burden of proof in discrimination cases is complicated. However it is wrong to say that the employer is guilty until proven innocent. Section 136 of the Act says that there must first be facts found from which the tribunal could decide ‘in the absence of any other explanation’ that discrimination had taken place. The tribunal should then uphold the complaint unless the respondent (the employer) shows that no discrimination took place.
In other words, the burden will switch to the employer only where the employee has shown that there are proper grounds to believe that discrimination might have occurred. Although the wording of S.136 is new, the overall approach is not and is based on the Burden of Proof Directive of 1997.
A shifting burden of proof is a difficult concept, but frankly, since the standard of proof is just the balance of probabilities, the technical question of where the burden of proof lies is often not crucial. Essentially the tribunal will listen to all the evidence and decide on what they think the most likely explanation is. Cases which actually turn on the burden of proof are pretty rare.
What is absolutely clear is that the statement ‘the onus is on business leaders to disprove even the most ludicrous accusations’ is complete nonsense. Simply not true.
Then there’s the ‘Third Party Harassment’ section […]. It means that any member of staff can sue their employer if they take offence to office banter, even if it has absolutely nothing to do with them.
Well I have all sorts of problems with the drafting on the provisions relating to third party harassment (though the principle is fine) – but it seems that DB is not actually talking about this. Third party harassment is where the harassment is carried out by someone who is not employed by or an agent of the employer (See S.40(2)). The employer can be liable for this if it has failed to take reasonably practicable steps to prevent the harassment and ‘knows’ that the employee has been harassed by a third party on at least two previous occasions.
What DB seems to be talking about is a situation where the employee is in a sense a ‘third party’ because the office banter is taking place between two other employees and he or she overhears them and takes offence. This of course can still be harassment under S.26 – in theory – but this is not new.
The only change to the definition of harassment is that the phrase ‘on the grounds of [X]’ in the previous legislation (where X was the protected characteristic in question) is replaced by the phrase ‘related to a relevant protected characteristic’. Does this make a difference? Not really. ‘Related to’ was already the phrase used in the relevant EU Directives and the courts were already taking a wide view of ‘on the grounds of’ – see the sexual orientation harassment case of English v Thomas Sanderson Blinds.
In any event, the idea of suing for harassment based on the environment created by behaviour not specifically directed at the claimant is not new. Take the case of Moonsar v Fiveways Express Transport Ltd in which a claimant successfully claimed sexual harassment when two male colleagues downloaded pornography onto their own computer screens. She was not targeted by that conduct, she merely observed it, just as she may have overheard sexist banter – and yet she won her case. That was in 2004, by the way. The Equality Act may make such a claim easier – but that is not at all clear. The conduct still needs to be ‘unwanted’ – and it may be difficult t show unwanted conduct if it really has nothing to do with the claim. Frankly I am puzzled as to why people think that the Equality Act will allow harassment based on overhearing a joke more than the previous legislation did. DB is not alone in this view, he didn’t make it up – but I don’t think its right.
Of course, that doesn’t stop people taking a company to court on trumped up claims of discrimination; I’ve had several situations where directors have had to spend days in a tribunal, knowing we would win the case eventually. The loss of time and money hits businesses hard, not to mention the negative headlines and the stress for everyone involved.
This is a fair point. The tribunal system is certainly in need of reform and many employers are concerned at how easy it is to bring a claim without bearing the financial risk if it proves to be misconceived. There are no easy answers to this – but it is absolutely nothing to do with the introduction of the Equality Act!
It encourages staff to cast themselves in the role of victim, no matter how trivial their complaint, and that leaves employers badly exposed.
What encourages people to regard themselves as victims is ill informed press reporting of employment rights, raising entirely false expectations of their chances of success and the riches they will gain as a result. If individuals think that they can raise trivial and ludicrous points and that the employer will be guilty until proven innocent, then the question is why do they think that? Is it perhaps because people like Duncan Bannatyne and the papers giving him a platform have told them so?
class=”Apple-style-span” style=”font-family: Arial, sans-serif”>I feel slightly guilty to be focussing so much ire on Duncan Bannatyne. Really he’s a symptom, not the disease. The standard of debate around equality law in the mainstream media is dreadful. Almost nothing I read is a fair summary of the law and what employers need to know. Too often the news is hijacked by those with an agenda, who want to use the introduction of the Equality Act as a hook to hang their particular issue on. HR professionals and lawyers know better than to get their information from the Daily Mail or the Daily Telegraph – but line managers, business owners and employees are vulnerable to misleading information of his sort. Ultimately equality relies on a common understanding of the standards to be applied and a general acceptance that the law is balanced and fair. If people believe some of the nonsense that has been written about the Equality Act then that is bound to have a negative impact. Bad information is bad for business – and bad for society too.
For the story as it unfolds follow me on Twitter. You can also read more about #Bannatynegate on these blogs:
…and possibly several others
0 Responses to “The Equality Act and Duncan Bannatyne”