Employers face legal action for discriminating against middle-aged workers

Britain’s equality watchdog is threatening legal action against companies that discriminate against middle-aged workers, warning that staff should not be "cast aside on scrap heaps" if they are unable to keep pace with new technology.

In an interview with The Telegraph, Baroness of Margravine, the new chairman of the Equality and Human Rights Commission (EHRC), revealed that the watchdog will make age and race areas of "strategic focus", as she admitted that the body had previously been seen to have "got lost in … rabbit holes that are quite esoteric".

"Since we cover the entire population, we want to now demonstrate that we are the equality body for everyone," she said.

A "great concern" about potential age discrimination was "middle aged people who are not able to upskill as readily as younger people do, in terms of the technological changes." The body will consider legal action against big firms discriminating on the basis of age, in order to deter others from doing the same.

Lady Falkner admitted that the EHRC was "being called upon by the country to do things better".

Setting out her fears about age discrimination, Lady Falkner said: "My great concern … is middle aged people … Our concern in looking at that area, is to ensure that middle aged people are not discriminated against when companies are moving, and adapting [to] technological change. We think middle aged women will be disproportionately affected."

Lady Falkner said the body could take one company to court to set an example to others, likening the potential move to landmark legal action against Uber over zero hours contracts.

A case could be brought "where a very large employer moves to new technology, but doesn’t make reasonable accommodation or offer training opportunities to its existing workforce and therefore privileges people who have those skills or are more easily adapting to those skills."

Stop talking about ‘divisive’ white privilege

White Privilege, it appears, is off the recommended reading list at the Equality and Human Rights Commission.

Baroness Falkner, the new chairman of the commission, whose online "race and ethnicity reading list" includes a book on the controversial concept, says she regards "white privilege" as a "divisive" expression and an "unhelpful way of looking at society".

In an interview with The Sunday Telegraph, the peer suggests that "civics" lessons in schools would be more useful for children than "fretting about one group versus another".

Last month, Conservative members of the Commons education committee were criticised for urging schools to stop using the term, after they said in a report that it may have contributed to a “systemic neglect” of white working-class pupils. 

Lady Falkner, 66, who grew up in Pakistan, says she was taught civics from the age of 12 and was "slightly bemused" to find no such provision in this country.

Civic rights

"If we taught rights in the curriculum, human rights, civic rights, that would be the more relevant thing to teach our young people, rather than fretting about one group versus another group, and whether one group has had innate advantages that other groups don’t have," she says.

"I prefer a unifying discourse to a divisive discourse. And I find those expressions to be divisive."

Strikingly for a former Liberal Democrat equalities spokesman, the peer’s remarks put her at odds with the EHRC’s usual allies, including senior MPs in the Labour Party, which set up the commission in 2007 to enforce the Equality Act.

Instead, her remarks on white privilege chime with those of Conservative ministers who said the concept of “white privilege” was “stoking divisions”.

But Lady Falkner, who was the Lib Dems’ international affairs director for six years from 1993 before joining the Lords in 2004, has trodden an unusual path.

In April 2018 she began to fall out with her party over its attempts to overturn the result of the Brexit referendum.

In 2019 she became an independent peer, and a little over a year later was unveiled as the Government’s choice to replace David Isaac as ECHR chairman. In a speech in December 2020 Liz Truss, the equalities minister, insisted that the best way "to reduce unfairness" is "through opening up opportunities for all", and described Lady Falkner and the other new EHRC commissioners as "ready to challenge dangerous groupthink."

Since then, Lady Falkner has been overseeing the commission from the west London mansion block in which she lives, holding video conferencing calls with fellow board members and staff whom she has yet to meet in person.

A senior official who sits in on the interview in the block’s sprawling communal garden is only the second staff member she has met in the seven months that she has been running the body from home – officially working two days per week, but in practice "much, much more."

Lady Falkner has been drawing up a new strategic plan for the EHRC, which appears consistent with the direction set out by Ms Truss.

The plan will "emphasise something that the Government too wants us to do, which is to be a better regulator, more agile. "We’ve done some focus group research … and one of the things that came out to us in that was that we’re very deliberative and we’re very careful to get things right, but one of the consequences of that is that you’re a bit slow." 

‘We take every individual’s case of discrimination seriously’

The body will also "deliver better", she says, adding: "We’re a well respected, credible organisation, but I wouldn’t blame people for thinking that we sometimes have got lost in going down rabbit holes that are quite esoteric.

"Of course, equality and human rights matter for every individual and we take every individual’s case of discrimination seriously.

"But sometimes the public seems to get the impression that we concentrate a little bit too much on one protected characteristic [under the Equality Act] or the other. And actually, if you look at the nine protected characteristics, whether it’s age … whether it’s sex, whether it’s religion, and belief, whether it’s LGBT, whether it’s race, it covers the whole population … I fit into four of those protected characteristics."

Lady Falkner avoids singling out the areas on which the commission has been seen to focus to the exclusion of others, but separately highlights that attempting to "foster good relations" between bodies at loggerheads over race, sex and trans issues, "takes up an inordinate amount of time and effort on our part".

That work will continue, with Lady Falkner keen for the EHRC to be seen as "the credible body that is able to navigate this stuff".

But, she says, the commission will demonstrate that it covers "the entire population" with legal action to uphold equality laws and fight discrimination, including against the elderly, children and disabled people. 

The body will use "strategic litigation" to take action against individual bodies with the hope that a win would reverberate across the relevant sector. 

"If your parents are elderly, and they need independent living, then one strategic case against one local authority, the lessons are learned across the whole sector."

The commission will monitor "all the protected characteristics", but with "some areas of strategic focus, such as race, such as age, because Covid has really exposed that older people’s rights are not being respected the way they should be."

‘People are not there to be cast aside on scrap heaps’

"This week, the EHRC will open an inquiry into whether older and disabled people are able to effectively challenge decisions by councils over what social care they are given.

"Another area of focus will be "the extent to which people are being disadvantaged through the use of technology". 

Lady Falkner is concerned that companies may be edging out middle aged workers who aren’t offered sufficient training to adapt to new technology.

"People are not there to be cast aside on scrap heaps," she says. "Employers have got to understand that while their bottom line may be all important, the bottom line comes with responsibilities to their workforce. Everyone has to be given equal opportunities to be able to adapt to the technology."

She adds: "We will take strategic litigation, if it comes to it, with other bodies that are operating in that area, for workers’ rights, or whatever it is." 

The commission will also examine whether algorithms may be "weeding out" job applicants with "certain names". 

Ms Truss criticised the body for having previously engaged in "freelance campaigning", and Lady Falkner confirms a shift from "advocacy" to "enforcement", with a focus on legal action rather than "writing wonderful reports that perhaps so many people don’t read." 

She believes that the commission is more effective at influencing new legislation via behind-the-scenes discussions "upstream" rather than waiting to "shout from the rooftops" when an unsatisfactory bill appears in Parliament. 

‘Culture wars are incredibly damaging to our health as a nation’

But, "it’s not sotto voce. It is sotto voce some of the times and very public at other times. I think that’s what a good independent regulator should be doing." 

The culture wars, Lady Falkner says, "are incredibly damaging to our health as a nation", and the commission will "try and get different bodies around the same table and to try and get some sort of reasonableness." 

Earlier this year, it intervened in the case of Maya Forstater, who alleged that she was discriminated against at work because of her view that trans women are not women. 

The EHRC insisted that her belief was protected under the Equality Act.

Lady Falkner says: "We all have to give a little bit of our rights in order that the other person can enjoy some of their rights." 

Those who engage in racist abuse online, as well as abuse of "gender critical academics", should be tracked down and prosecuted, she insists. 

The peer says the necessary laws are in place to allow police to target people who engage in abuse, but authorities often face dead ends when it comes to tracking down social media users.

Failure of integration

 "I think we need to be creative in Parliament with the Online Safety Bill, which is forthcoming," she says, suggesting that she will "be cheering effective sanctions" against social media companies who fail to hand user details over to police. 

Lady Falkner has been concerned by anti-Semitic incidents on the country’s streets, including the anti-Israel protesters who drove through Jewish areas of north London shouting abuse earlier this year. 

While she has concerns as EHRC chairman, "it’s also a concern for me, because I’m a Muslim, I come from that background, and I want this community to be well regarded in this country." 

She adds: "I’m very proud that the United Kingdom doesn’t want people like me to be like the majority … But it does call upon us, therefore, to have a responsibility to understand the culture, to value the values, and to subscribe to those values. 

"The foundational aspects of those values are a respect for equality and human rights. And those people in north London obviously don’t understand that. That’s a failure of integration."

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