Today's blog article has been provided by Tim Gooder, an employment lawyer from Gordons LLP, who has recently provided some discrimination awareness training to one of our Charter signatories.
Tim writes: "I have discussed discrimination law with a selection of IP professionals up and down the land and one issue was raised on a few occasions – international clients.
Of course, UK employers are under a duty to ensure fairness in the workplace and prevent discrimination. This task is then made arguably more complicated for employers with international clients for whom different cultural norms and practices may apply, from countries with less stringent laws to prevent discrimination than our own.
This blog article will consider the legal position where clients seek to impose restrictions on employers in terms of which of its employees should or should not undertake work on their behalf.
By way of background, save for in certain prescribed circumstances, employers are prevented from either directly or indirectly discriminating against their employees and this is defined as follows:
So far, so straightforward.
However, the legal waters become murkier when an employer proposes to treat members of its staff less favourably at the behest of a (perhaps valuable) international client. In a situation where a client specifies that an individual or a group of employees with protected characteristics undertake or are prevented from undertaking a particular job, is the employer then liable? Can such prima facie discrimination ever be lawful?
Today's blog article has kindly been provided by Fellows and Associates Ltd and is a more in-depth review of an excerpt from their 6th annual Salary Survey that has recently been published. The article focuses on the final part of their report that looks at discrimination within the workplace. Fellows and Associates are one of our Charter signatories.
Michele Fellows writes: “Every year, Fellows and Associates compile a salary survey of the Intellectual Property profession. We continually look to improve on it based on feedback and changes within the market place and this year, in support of IP Inclusive, we were particularly excited to take a closer look at discrimination within the workplace. We know that many firms have signed up to the IP Inclusive initiative and times have changed recently (although never as much as we would like) and as such we asked our respondents to focus solely on their experience within the last two years.
To put this into perspective, 88 of the 206 people who completed the survey had experienced discrimination of some sort. Of these 88 people, 67% had encountered discrimination of more than one type either directed at themselves or at someone else. This issue is definitely not exclusive to the UK, with both the UK and international contributors achieving almost the same ratio of those that had been discriminated against versus those that had not.
Today's blog article has kindly been written by Rhys Williams and is a reflection on his thoughts on diversity and inclusion, from the point of view of a self-“confessed” white, Oxford educated male. Rhys is a partner in Abel & Imray’s Cardiff office, and a member of the firm’s diversity and inclusivity group. Abel & Imray are one of our Charter signatories.
Rhys writes: "I’m a white, Oxford educated, male, so why should I care about diversity? After all, at my firm we employ graduates from both Oxford and Cambridge, so how much more diversity do you need? I suppose we could start looking at Imperial…
My background is fairly liberal, from a family with a mother who did two Open University degrees when we were small, and who fought the coal board in the 1970s for equal coal allowance (and who certainly has short shrift with any sexist behaviour or jokes). I went to a comprehensive school in a middle-class town, and a small, liberal Oxford college known for being an LGB college and taking the most state school students. My paper of choice is the Guardian (though I did throw my Birkenstocks out a few years ago). I sort of assumed that the battle had been won, that no one needed to be marching for equal rights etc. as who would discriminate against someone because they were a woman, gay, lesbian, black, disabled? This is 2017, not 1977.
I listened to experiences of female university friends, many in mainstream professions working for big, multinational companies, with some scepticism that the sexist comments they reported were really made, or whatever was said was misinterpreted by someone looking to be insulted. But these stories began to build up, and I realised that whilst some major battles have been won, there are many forms of discrimination and bias that continue to affect people every day.
In the debate about gender equality, terms like “positive discrimination” and “quotas” get a bad press. Both men and women tend to feel uncomfortable with the concepts. But it’s time we got real about this. We do not yet have equality in the workplace. After years of anti-discrimination laws and equal pay legislation, there is still a significant gender pay gap. Women are still not well represented in the board room. There are still assumptions about female roles, and corresponding biases, that affect people of all genders.
Something needs to be done. And that something requires us to be bold. Fussing about positive discrimination being unethical is for the person who wants to preserve the status quo or the one who’s reluctant to cause trouble. And unfortunately that does appear to be our choice: to stir up trouble, or to make scant progress.
The key questions are: is the status quo really good enough? Will the current pace of change – often painfully slow – suffice? Is it OK for our own children to suffer discrimination, and their children too? For me, no. I think we all deserve better.
Facebook recently announced that they will require women and ethnic minorities to account for at least 33% of the law firm teams they engage. I salute them for that. If you cannot see for yourself that, say, 10% women is inappropriate, then someone must step in and say it for you.
So what are the arguments that make us wary of positive discrimination?