Discrimination or selection?

The word describes something that all right-thinking people should oppose, it seems.

But it really is not that easy.

We live on a small island where most people like to think that government is kept small and life is fairly straightforward. We rely on people behaving well rather than running to the courts for enforcement of the horribly complex laws which we are close to enacting.

The proposals are extensive and complicated. Legal processes will greatly increase in quantity and cost.

Try asking your deputy detailed questions about the proposals – it will be more fun than watching The Apprentice.

We have no visible generalised crisis about discrimination, but we are about to have a gold-plated wall of anti-discriminatory laws given to us that are a combination of the Irish and Australian laws concocted by two souls at Galway University who make their living out of anti-discrimination.

Ireland and Australia are notably larger than Guernsey.

It is hard (and brave) to oppose many portions of the proposed law – few are opposed to protecting people from meaningful racial or sexual discrimination and rightly so. The question is how onerous a legal system needs to be to provide a sensible balance.

A big issue to worry about is the effects of the proposed legislation on businesses here. This vulnerable island depends for its prosperity on the quality of the resident businesses.

The rest of what I say is limited to one small corner of the new rules – disability discrimination in employment.

The proposed definition of disabled is extremely wide – it starts with a statement that it ‘includes but is not limited to’ a long list. The list includes ‘the total absence of bodily functions’ – otherwise known as death – which historically Guernsey employers have been able to recognise. There is no minimum period for disability, no minimum impact and basically anything wrong mentally or physically is a ‘disability’. We are all to be disabled, it seems.

Bluntly, a lack of talent will easily be deemed a disability – this is silly.

If someone has a disability, then the employer has to make ‘appropriate adjustments’ to accommodate them (the UK has a more sensible ‘reasonable adjustments’ standard) and an employer is not going to be allowed to ask if people have a disability in the recruitment process. Accordingly, someone who has an undisclosed disability can immediately on joining require the employer and possibly fellow employees to entirely change their method of working and leave the employer with an immediate threat of legal process over what is appropriate (and possibly a large, unplanned financial outlay).

It gets harder for employers – selecting from a long list of things to worry about, employers will not be able to take account of an individual’s sickness records in either recruitment or redundancy decisions.

It will be very hard for employers to handle all kinds of situations. Say there is an internal promotion to consider and two candidates are employed. One suffers from a depressive illness which results in periodic absence but both candidates are of similar overall capability. You may end up taking the decision to promote the person with the depressive illness principally to avoid the risk of a legal process rather than act for the good of the business (which will bear the additional cost of ‘appropriate adjustments’) or the good of the other candidate – who probably has ‘injury to feelings’ and no remedy.

The proposed rules are very difficult for employers where every step in dealing with employees will be conducted with one eye fixed on how it will look if the employee ‘goes legal’.

The new rules provide for large payments to people for ‘injury to feelings’, which will be all too obviously open to abuse and debate. Employees who pursue money under this heading will doubtless then have a terrible relationship with their employer and will mostly then leave clutching an additional settlement.

It is nice to think that rules such as those proposed will not be ‘gamed’ – but they will be. It is already fairly common for someone under performance pressure at work to go to the GP who may, or may not, look up from the desk before diagnosing ‘stress’ and signing people off work for protracted periods. Substantial termination settlements regularly follow this with accompanying legal bills.

A toxic work atmosphere will become the norm if these new provisions are enforced, with the threat of legal intervention in the employer/employee relationship and resentment from some employees as to the preferred position of others.

We must recognise there is a real need for competitive advantage to enable Guernsey to prosper. The current balance of power between employees and employers is already quite good for employees – demand is strong for employees in the current market.

Jobs will be lost if employing people gets too hard. (There will of course be a need for more lawyers...)

Under the new regime, employers may not be able to discriminate where it may really matter – that is, in selecting the best people for a job so that businesses work as well as can be.

I am all in favour of helping people prosper to their best, but this help should be sensibly measured.

The States have made no effort at assessing the economic costs of these proposals with the obvious costs of legal processes, the likely generation of more adversarial relationships with staff, the costs of ‘appropriate’ adjustments (and the costs of ascertaining what these are) and job losses but above all, the costs of ending up with less efficient businesses through distorted hiring and promotion.

The cost needs counting.