“We didn’t hire him because he sounded common.”
In the UK, it is lawful for an employer to turn down a job applicant, or offer them less money, on the basis that they’re working class. Under the Equality Act 2010, social class is not a protected characteristic – it does not share the protection of race, sex or religion amongst the nine protected characteristics.
The UK has a problem with social inequality in the workplace. Only 39% of people in professional jobs are from working class backgrounds. People from working class backgrounds earn less than middle classes in the same professional jobs – £6,000 less in 2019.
Two years ago the Trades Union Congress called for social class to become the 10th protected characteristic under the Equality Act. Since then, no change has been made. But with the Social Mobility Commission’s Report 2021 projecting that social inequality is set to worsen in the wake of the pandemic, the prospect of a legal solution is ripening.
How could class be defined?
Although, as demonstrated by Grainger plc v Nicholson (belief in man-made climate change is capable of being a philosophical belief), the courts have provided legal frameworks for concepts tending to escape definition, the more nebulous aspects of social class remain hard to formulate into working criteria.
However, a basic definition which protects those who come from socioeconomically disadvantaged backgrounds is possible. Since 2018, Scottish public bodies making strategic decisions have been under a legal obligation to consider how to reduce inequalities of outcome caused by socioeconomic disadvantage (the ‘Fairer Scotland Duty’, under Part 1 of the Equality Act). In respect of that duty, socioeconomic disadvantage is treated as low income, low wealth, material deprivation and area deprivation. Those are measurable categories and could form the starting point for protecting social class under the Equality Act.
Could a working class but wealthy individual be protected too? In Taylor v Jaguar Land Rover Ltd, the protected characteristic of gender reassignment was held to be “a spectrum”, with individuals along that spectrum coming under its protection. Likewise, individuals who were socioeconomically disadvantaged but are no longer so could also qualify for protection. This approach could enable the legislation to encompass facets of class that make an individual vulnerable to discrimination, but which don’t bear direct correlation to financial means.
A definition, as above, that is premised on socioeconomic disadvantage alone would not protect a person from discrimination based on social privilege. The applicant turned down for sounding “too posh” would still be without a remedy. To extend protection to all kinds of social class, the characteristic would need to be framed more broadly – perhaps “any trait that is commonly associated with either socioeconomic advantage or disadvantage”. Admittedly this is hazardously vague and would require judges to fill in major definitional gaps in order to guard the floodgates. The fact remains that defining class for the purposes of the Equality Act is a major hurdle.
What would it mean for employers?
If class were made a protected characteristic, employers would have to look particularly carefully at their recruitment criteria. Requiring unpaid internships could indirectly discriminate against underprivileged candidates. Employers targeting university graduates at careers fairs may need to equally engage Russell group and non-Russell group universities. Certain qualities in job descriptions that are implicitly associated with privilege (“gravitas”, “polish”) would need to be removed.
However, many employers have already gone some way to addressing social inequality in the workplace. This is apparent in the widespread introduction of unconscious bias training, objective assessment criteria, and the increasingly common practice of removing school and university names from CVs. Exhaustive anti-bullying policies should prohibit discrimination in all its forms, including social class. In other words, employers who are already actively committed to improving diversity may find that a change in the law won’t entail making many changes of their own.
This article was written by Martina Murphy, head of the 12KBW employment group, and Jessica Franklin, a pupil.
employment & discrimination 