By James Davies, and Tom Heys

Firm: Lewis Silkin LLP 

Following the announcement of new proposals from the UK’s Trades Union Congress to tackle class discrimination in the workplace, this article examines some of the issues and challenges for legislators and employers.

All employers will be required to tackle class discrimination if new proposals by the UK Trades Union Congress (TUC) for eliminating class-based bias are enacted.

Why is this a problem?

The TUC’s report points to a number of statistics demonstrating that working class individuals suffer disadvantage.

Its analysis shows that 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. Those with parents in professional occupations are also much more likely than those from working-class backgrounds to be in a job earning above GBP 25,000 per year.

The impact of schooling is significant, with privately educated individuals more likely to get into the highest paying graduate jobs. The TUC says that 18% of privately-educated graduates earn over GBP 30,000 within six months of entering the workforce, compared with just 9% of state school educated graduates. At the other end of the spectrum, 41% state school educated graduates earn below £20,000 six months after graduating, compared to just 28% of privately educated graduates.

What is ‘class’?

The TUC points to various different methods of defining class.

The first is occupation. The TUC’s report points to the Office for National Statistics ‘NS-SES’ classification, which is based on occupation of the role an individual currently performs. Categories range from ‘high managerial occupations’ to ‘long-term unemployed’. The TUC says that ‘routine’ and ‘semi routine’ roles are often seen as working class jobs, and that these roles account for around 20% of the working population.

However, research in 2015 found that when people are asked to self-identify, 60% of people believe they are working class. This might not be because of the nature of their own occupation, but rather the type of work their parents did. Of those in managerial roles, 47% say that they are working class.

The TUC also points to a BBC class survey in 2015. This identified seven different classes based on economic, social and cultural factors. Additionally, the TUC says that, in their work on class and public services, they look mainly at those earning below average income.

The TUC believes that each of these measures can tell us something about class, and that ‘rather than ignite a lengthy debate about definitions, we want to focus on how to tackle the persistent class inequality that still exists in Britain today’.

What are the proposals?

The TUC makes three proposals:

  • Make discrimination on the basis of class unlawful, just like race, sex and disability.
  • Introduce a legal duty on public bodies to make tackling class and income inequality a priority.
  • Compulsory ‘class pay gap’ reporting for all employers.

‘Class’ as a protected characteristic

The TUC suggests that ‘class’ should be added to the Equality Act 2010 as another protected characteristic, making it unlawful for employers to discriminate due to someone’s class. This would cover cases of direct discrimination, for example not hiring someone because they ‘sound posh’ or harassment based on negative stereotypes of working class people. It would also cover the subtler cases of indirect discrimination, and the TUC gives the example of only offering internships on an unpaid basis (which puts poorer individuals at a disadvantage).

Public sector duty

The TUC is proposing to enact section 1 of the Equality Act 2010, the duty on public sector bodies to ‘address socio-economic disadvantage when making strategic decisions’. This measure was included in the 2010 Equality Act, which was drafted by a Labour Government, but has never been brought into force by any of the governments since 2010.

The duty would force all public bodies to have ‘due regard’ to how the decisions they make will affect people of different classes. Despite never being enacted, some local authorities in England have adopted a voluntary approach and, in April 2018, the Scottish Parliament enacted the Fairer Scotland Duty, which is the name given to the socio-economic duty in Scotland.

The duty does not stop the public body from making any decisions that would disproportionately affect those of certain classes, but it adds an extra procedural step which a public body would have to show that it has taken. The TUC argues that enacting this duty would tackle the systemic discrimination faced by the lower classes and so make public policy decisions fairer.

Class pay gap reporting

Transparency and reporting requirements are currently popular ways of trying to solve difficult problems. We see it in the new CEO pay ratio reporting regime, the publication of age demographic statistics suggested by the Women and Equalities Committee, and (of course) in gender pay gap reporting. Ethnicity pay reporting will likely be the next big reporting requirement for employers to deal with, but when and in what form remains to be seen. Any insights that might come from ethnicity pay reporting may also reveal something about class; ethnicity and socio-economic disadvantage are strongly correlated.

The TUC wants to go further and introduce pay gap reporting specifically focussed on class. They argue that this would make employers think hard about the representation of different classes in their workplace and prompt action to tackle any barriers that might exist, as with gender pay gap reporting.

Comment

The UK would not be trailblazing if it brought in class as a protected characteristic. in Europe, Belgium, Cyprus, Denmark, Hungary, Latvia, Portugal, Romania, Russia, Spain and Ukraine have all implemented protection for social origin characteristics and in the Americas, Argentina, Chile, Mexico, Panama and Venezuela have done so.

One of the protocols to the European Convention on Human Rights covers discrimination on grounds of ‘social origin’ as well as ‘property, birth or other status’. However, in those countries that have brought this into their laws by signing and ratifying this section of the Convention (the UK has done neither), claims of this nature are rare. This could be explained by those countries having less divided and class-based cultures than our own, but another big factor is probably that the laws don’t work without a proper definition of ‘social origin’.

The UK grappled with a similar definition problem recently when it consulted on making caste discrimination unlawful. Despite acknowledging that caste discrimination was a problem, in the end the government rejected the idea of making caste a protected characteristic partly because of divisions over what the concept of caste was, and what specifically it captured, even among those who are familiar with the nuanced concept of caste.

Trying to frame class as a protected characteristic could prove equally difficult.

A self-definition approach could be adopted for class pay gap reporting purposes. This is how gender pay gap reporting works. There is no requirement to make an objective determination of what someone’s gender is. The self-definition approach is also likely to be taken for ethnicity pay reporting (and of course ethnicity is also often complex and arguably difficult to define). Employees could be asked to select their class from a discrete list of options, and employers would then calculate the data on that basis. However, although it may be possible to calculate class pay gaps from this sort of data, what these gaps might actually tell us about class is another story. For example, a company CEO who defines themselves as coming from a working class background would significantly distort the figures.

Aside from the arguments about definition, there will be other arguments about policy. When it looked into legislating for caste discrimination in 2018 the government became uneasy about creating a law that could result in banning discrimination based on class. This was a real concern because the concept of caste may include aspects of social status. The government concluded that legislating for caste was divisive, and said that the same would be true for legislating for class discrimination more widely. It remains to be seen if future administrations take the same view. The Labour Party is likely to call for the introduction of section 1 of the Equality Act in its next manifesto, but it will be interesting to see if it goes further into this controversial topic and agrees to adopt the TUC’s recommendations in full.