The Case for Caution in Making Social Class a Protected Characteristic under the UK’s Equality Act 2010

by | Aug 3, 2023

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About Lizzie Barmes and Kate Malleson

Lizzie Barmes and Kate Malleson are Professors of Law at Queen Mary University of London. They are Co-Directors of QMUL School of Law’s Centre for Research on Law, Equality and Diversity and Kate is Director of QMUL’s Institute of Humanities and Social Sciences. Their research interests meet on equality law, the legal profession, judicial diversity and empirical legal research method

Momentum is growing in the UK to make social class a statutory protected characteristic. The Co-Op, The British Psychological Society, and the Bridge Group, amongst others, have proposed legislative reform to prohibit class discrimination. This may look like an ‘easy win’, especially for political parties puzzling over their manifestos and wanting to signal tangible action to combat the cost-of-living crisis. Yet there are considerable risks that this legal reform would either achieve little or actually hamper initiatives to combat socio-economic inequality.

A key problem lies in the framework of the UK’s equality law. Most of the Equality Act’s prohibitions on discrimination are provided symmetrically. For example, the Act prohibits discrimination against men and people of majority ethnicities as much as discrimination against women and members of ethnic minorities. If equivalent symmetrical anti-discrimination and equality rights regarding socio-economic background were enacted, this would endanger the legality of targeted measures to address socio-economic inequality. These would become liable to challenge as unlawful discrimination against the comparatively socio-economically advantaged who were not eligible to benefit. The survival of targeted schemes would then depend on whether they could be brought within exceptional categories of permitted positive action. An example of an affected practice is contextualized assessment of qualifications that currently justify universities offering places to socio-economically disadvantaged candidates with lower grades, when the contextual evidence reveals such applicants to have performed as well as, if not better than, more advantaged comparators. This risk is not theoretical. Claims that UK universities are discriminating against private school applicants are growing louder. In addition to the concrete risks to employers, universities, charities etc of being sued for attempts to reverse class-based disadvantage, the mere act of making class discrimination unlawful would convey a powerful message to the whole of society that initiatives of this kind are illegitimate and that existing class inequalities are justified.

One response would be to ensure legislation is non-symmetrical, like draft Irish legislation limiting protection to those with ‘socio-economic disadvantage’. This would be in line with Equality Act 2010 provisions on disability, gender reassignment, pregnancy and maternity, marriage, and civil partnership, which mostly give rights to individuals seen as being at risk of discrimination on these grounds, not their counterparts. But difficult definitional questions would remain: Should the protected characteristic refer to class, social origins, social background, financial resources, accent, or a combination? Should protection be based on a person’s original socio-economic circumstances, their position at the time of the claim, or both? How should the cut-off point be defined and who, accordingly, left out?

Addressing these questions would inevitably provoke extensive political and public wrangling. Denying new class-based anti-discrimination rights to the comparatively privileged risks stoking resentment and provoking further backlash against differential efforts to address socio-economic inequality. There is danger even in setting down this road of enflaming culture wars that are already polarizing public opinion and fracturing UK society.

The difficulty of finding a consensus might in turn encourage Parliament to legislate very wide protections and leave it to employers, schools, universities, providers of goods and services etc, and the courts, to grapple with real-life dilemmas generated by the new law. There is precedent for this legislative approach and the problems it creates, for example, regarding religion or belief discrimination.

These risks create a need to tread extremely carefully in scrutinizing the case(s) being made for socio-economic background to become a protected characteristic. An alternative is to investigate fully bringing into force the Equality Act 2010’s  public sector obligation on reducing inequalities that result from socio-economic disadvantage (which applies in Scotland and Wales). This is a frustrating message for progressive lawyers, campaigners and policymakers who may look to law to do the heavy-lifting of constructing a more egalitarian society. Yet too often the experience of UK equality law over the last 60 years has been that it has failed in that goal. In relation to class inequality, the risk is even greater, of the legacy being the opposite of what was intended and of, again, opportunity costs in the form of wasted time, energy, and political capital.

Want to learn more?

Read: Classism, Hate Crime and the Law Commission’s Consultation Paper 250: Lessons from Discrimination Law

Read:The Big Gap in Discrimination Law: Class and the Equality Act 2010

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