Nicholas Siddall, barrister and head of employment, Kings Chambers
Opinion: Firms shouldn’t just talk the talk on ‘class’ diversity
As a society we like to think of ourselves as a pretty tolerant bunch.
Nicholas Siddall
We’re slowly learning the lessons of feminism (glass ceiling permitting), have turned our backs on the BNP and these days a trip to London, Manchester or Brighton for the Pride festivities might seem no less unusual than a weekend spent in the mud at Glastonbury.
So I read with interest the article on TheLawyer.com (21 December 2010) that suggested top firms are rejecting candidates on the basis of their working class accents.
As you would expect, the article provoked a significant level of debate, with 68 comments already online at the time of writing. It says perhaps more about our views as a society on discrimination that the vast majority of these were posted anonymously… but I digress.
The comment in which I was particularly interested read as follows: “Substitute ’real Essex barrow boy’ for ’black’ and there would have been uproar…”
The error in the comment, I would suggest, lies in viewing the two issues as being wholly dissociated.
I won’t detail the relevant section (19) of the Equality Act 2010, save to say that it defines a “protected characteristic” in s19(3) EA to include race. That is all fascinating, you might say, and observe what does this have to do with ’accentism’?
Potentially everything, is the reply. There is no doubt that a requirement to speak with a ’non-working class accent’ (whatever that might mean) is a provision, criterion or practice (PCP) that acts as a bar to entry to the profession.
However, what does that have to do with race? Again, potentially a great deal. It is a sad fact that statistically if you’re from an ethnic minority background you’re more likely to be a member of the working classes and thus (it would seem) to speak with such an accent. Therefore it seems likely that such a PCP is indirectly discriminatory on grounds of race.
Of course, an indirectly discriminatory PCP is capable of justification in the event that it is a ’proportionate means
of achieving a legitimate aim’. However, the guidance of the European Court of Justice and the higher domestic courts demonstrates that this is not a simple hurdle. It requires an employer to satisfy an employment tribunal that the PCP is reasonably necessary and proportionate having regard to the discriminatory effect of the PCP as weighed against the reasonable needs of the employer.
Obviously in the forensic environment of the Employment Tribunal it is likely that sophisticated arguments would be deployed by the employer to seek to justify any such PCP. However, reading this story reveals that the arguments made by law firms in support of such a requirement were: (i) you just couldn’t put a person with an ’Essex barrow boy’ accent before a client; (ii) such a person ought simply to be viewed as being different; (iii) responsibility for social exclusion does not lie solely with law firms; (iv) recruiting from newer universities suggests to clients that the firm cannot recruit from the more established universities; (v) it requires a brave firm to stand out and do something different.
If a firm is planning to use any of these in defence of its recruitment policy, it should think again, as they echo many of the unsuccessful arguments deployed in defence of discrimination claims in the past. Well-worn examples include: “It wasn’t his race, age or gender, (s)he just wouldn’t have fitted in”; and “(S)he just wasn’t our sort of person.”
There is a real risk that the exclusion of individuals from the profession because of their accents is a dangerous approach legally as well as being dubious morally. Any firms wedded to such an approach may wish to reconsider their criteria for the selection of recruits to avoid the risk of litigation.
Nicholas Siddall, barrister and head of employment, Kings Chambers
Readers' comments (7)
Anonymous | 10-Jan-2011 1:22 pm
Why does the workplace need to be representative? Do we need it to be representative of the globle, or just the country, or just the city, or just the village? What about representative of all religions, lest we offend one? What about gender, sexual preference, disability, mental illness, physical illness? How about we stir in there some sugar and spice and just a modicum of fairy dust? The best lawyer should get the job- period. Black, white, yellow, fat, thin, gay or not- the best lawyer should win out. I don't see any statistics showing the qualifications of the alwyers who have jobs- most likely because they don't suit the writer's puropse.
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Anonymous | 10-Jan-2011 2:09 pm
Unlike race, accent is something that you can change/moderate. Many of us have done so to a greater or lesser extent, and by doing so we smooth over our differences in class/region. Some diversity is lost perhaps. But the flipside is that to moderate your accent indicates an ability and willingness to fit into your environment and with other people. That's not to say that we should expect everyone to sound like a public schoolboy/girl. But is it unreasonable that those who refuse to moderate their accent to fit better into a professional environment should find that as a handicap to getting on/into the profession? A bit like dressing professionally, innit?
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Anonymous | 10-Jan-2011 3:50 pm
If firms want to recruit an individual with a certain profile because it deems this will be best for business, then you can't blame the law firm.
Law firms exist to serve the needs of their clients and if their clients respond to a lawyer with a certain profile then so be it.
Why should firms lose money just to be politically correct?
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Anonymous | 10-Jan-2011 5:12 pm
I wonder if your correspondent is mixing up two distinct issues- a "working class" accent and ungrammatical/inarticulate speech patterns. I grew up in a council flat and went to local schools in East London where my peers spoke classic " Cockney". I did smooth out my accent a bit but more importantly learnt to speak coherently and fluently (with some help from my parents who would not have tolerated "aitch dropping" etc .
I have worked with inarticulate public school boys and highly articulate East Enders who had the benefit of an education system which did not patronise them but taught them to speak grammatically even if with a regional accent.
Who would want an inarticulate ungrammatical lawyer and why is it racist to require high standards of speech and grammar from a lawyer ?
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Scep Tick | 10-Jan-2011 5:13 pm
"Unlike race, accent is something that you can change/moderate."
Pfft. Tell Sean Connery that.
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ARC | 13-Jan-2011 1:59 pm
Undoubtedly the best must get the job but the problem with the English Law firms is that they equate the best not on on their qualifications, skills or achievements but on their backgrounds-preferrably white, high class and from good university and European. Law firms in England have been lobbying hard for openning the legal sectors elsewehere but in their own turf they are excessively restrictive in terms of recruitment and selection from non-European backgrounds. Law firms in London are not global law firms they are very much local law firms with very narrow outlook for recruitment, selcting candidates mostly from UK, sparingly from EU and rarely from non-Eu territories (which is also resticted to Australian and Canadian lawyers-white lawyers) and hardly from other commonwealth countries. Why do these law firsm with such narrow contricted mentalities strive and aspire and seek the legal sectors in the developing economies to open up? Typical British double standards
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Iggle Piggle | 13-Jan-2011 3:59 pm
Unfortunately a lot of it is just talk. As with CSR etc, its all about being seen to do the right thing but you can't make the individuals concerned believe/think it. In my opinion lawyers are generally judgemental of those who think, act, look or speak different to them.
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