As a society we like to think of ourselves as a pretty tolerant bunch.
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