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Let's talk about unity, not division

A recent government report on race and integration in the UK has focussed on the differences between us at a time when we must be looking at the ways in which we are, and could become more, united.

“If the idea of loving those whom you have been taught to recognize as your enemies is too overwhelming, consider more deeply the observation that we are all much more alike than we are unalike.” Aberjhani, Splendid Literarium: A Treasury of Stories, Aphorisms, Poems, and Essays. Photo: Geralt/Pixabay. Some rights reserved.

Since the shocking murder of Jo Cox MP, we have heard the phrase that we have more in common with each other than the differences between us. Yet recent reports and studies into the treatment of minority ethnic people in Britain continue to highlight diversity in a negative and divisive way. Most recently, the optimistically entitled The Casey Review – A review into opportunity and integration, focused on the differences between us at a time when unity above all else is required. In the Foreword section, Dame Casey begins as she means to go on:

“At the start of this review, I had thought that I knew what some of the problems might be and what I might report on. Discrimination and disadvantage feeding a sense of grievance and unfairness, isolating communities from modern British society and all it has to offer.

I did find this. Black boys still not getting jobs, white working class kids on free school meals still doing badly in our education system, Muslim girls getting good grades at school but no decent employment opportunities; these remain absolutely vital problems to tackle and get right to improve our society.

But I also found other, equally worrying things including high levels of social and economic isolation in some places and cultural and religious practices in communities that are not only holding some of our citizens back but run contrary to British values and sometimes our laws. Time and time again I found it was women and children who were the targets of these regressive practices. And too often, leaders and institutions were not doing enough to stand up against them and protect those who were vulnerable.”

This is just one example of how the review centres on isolated examples which are then generalised as a concern about the broader immigrant population. The review creates a shift of blame towards immigrant communities which is then perpetuated throughout the document. Dame Casey gives some acknowledgement that discrimination “feeds a sense of grievance” – but even this phrase characterises the effect of discrimination as a subjective emotion as opposed to a real thing that has tangible consequences. In other words, the implication is that discrimination only has emotional consequences, rather than real economic or societal disadvantage. The way in which we feel in relation to others (i.e. lower status, inferior) is itself a real thing and correlates with social and health issues.

The section then quickly turns its focus on “some places” where cultural and religious practices are contrary to British values and laws. What is striking is that Dame Casey found that the actions or beliefs of some isolated communities were “equally worrying” to the discrimination which pervades British institutions and systems. I simply cannot agree with this statement given the overwhelming need to review and correct structural racism within Britain.

Systemic, or institutional, race discrimination remains a silent yet destructive force that continues to create significant disadvantages for specific groups of people within Britain. The EHRC highlighted the overwhelming evidence of structural discrimination against BAME people in its Report Healing a divided Britain:  the need for a comprehensive race equality strategy. It found (among other things) that:

  1. Unemployment rates across Britain were significantly higher for people from all other ethnic minorities (12.9%) compared with the rate for White people (6.3%) in 2013. 
  2. Black workers with degrees earn 23.1% less on average than White workers with degrees.
  3. Overall, people from ethnic minorities are more likely to live in substandard and overcrowded accommodation and to live in poverty compared with White people across Britain. 
  4. Black and Asian workers are moving into more insecure forms of employment at higher rates than White workers. They were twice as likely (4.3%) to be in involuntary temporary employment in 2014 compared with White workers (2.1%). 
  5. They are more than twice as likely to be in agency work. This increased by nearly 40% between 2011 and 2014 for Black and Asian workers, compared with a 16% rise for White workers (TUC, 2015). 
  6. By the end of 2014, ethnic minority representation in FTSE 100 boardrooms was 5%. All-White executive teams ran 69% of FTSE 100 companies and 95% of FTSE 100 board directors were White (Green Park, 2014).

Within the employment context, indirect race discrimination claims are rarely brought despite being the appropriate legal route to challenge systemic discrimination. Even where those claims are brought before the Tribunals and Courts, they seldom succeed. In the US, there is a far broader understanding and acceptance of systemic discrimination.

In an early US Supreme Court case concerning indirect race discrimination, Griggs v Duke Power, it was held that employment assessments which have a disparate impact on racial groups require employers to demonstrate that those tests provide a “reasonable measure of job performance”. A feature in the US case was that there was knowledge as to the reason why Black employees performed less effectively than White employees in those work assessments, namely the impact of segregated and inferior education within particular areas of the US at the relevant time.

There are legal difficulties in establishing structural race discrimination despite clear evidence that there are additional hurdles for BAME people within Britain preventing them fully integrating.

In the UK, the Supreme Court recently heard an appeal in the case of Home Office (UK Border Agency) v Essop which demonstrates how difficult it is in Britain to succeed in a case similar to Griggs. The case involved a number of civil servants at the Home Office who required all its staff to sit and pass a Core Skills Assessment (CSA) in order to become eligible for promotion. The claimants in the case all failed the CSA and were all non-white or BAME employees. Some were also older than 35 and also relied on age as a protected characteristic, in addition to race. Each claimant argued that the requirement to pass the CSA for promotion was a provision, criterion or practice that disadvantaged them (in comparison to white and/or younger comparators). The claimants relied on statistical analysis carried out by the Home Office in 2009 which concluded that BAME and older candidates had a proportionately lower CSA pass rate than white and younger candidates: “the BME selection rate was 40.3% of the white selection rate … for older candidates the rate was 37.4%”. It was agreed that white and/or younger candidates did also fail the CSA.

Despite the clear statistical evidence, the case has been difficult to fight because of the way in which the law of indirect discrimination has been written into the Equality Act 2010; and the subsequent interpretation of the legislation by the Tribunals and Courts has been restrictive. The hurdle for claimants in indirect discrimination claims, particularly in race claims, is set very high. The main point of contention, which has now been aired before the Supreme Court and is awaiting judgment, is the Home Office’s argument that the Claimants are required to show the reason why BAME employees in particular were less successful in passing the assessment. The statistical analysis alone has been said to be insufficient to demonstrate disparate impact in the legal sense. But surely, to tackle structural discrimination effectively, it is enough to show that there is a barrier – whether the reason for this barrier is known or not.

The other indirect discrimination case of interest, which was heard alongside Essop in the Supreme Court at the end of last year was the case of Naeem v Ministry of Justice. Mr Naeem is an imam within the Prison Service. He was engaged on a sessional basis for several years prior to his employment in 2004. Before 2002, only Christian Chaplains were allowed to be employed directly in prison services. As a result, Muslim imams (regardless of their actual length of serving as sessional imams) started at the bottom of the pay spine and had to work their way up in line with their length of service as an employee. Mr Naeem claimed that this was indirectly discriminatory on the basis that Muslim imams suffered a particular disadvantage, in comparison to Christian chaplains, as they were all clustered at the bottom of the pay spine given their newer entry into employment whilst Christin chaplains were spread across the length of the pay spine. The Ministry of Justice argued that the correct comparator was a Christian chaplain who also commenced employment in 2004 and started at the bottom of the pay scale.

At the Court of Appeal, it was held that Mr Naeem had not shown that he had suffered particular disadvantage because there was no discriminatory reason that he could not have been employed prior to 2002. Mr Naeem argued before the Supreme Court that this was a hurdle too far and it was not a requirement to show that the reason why he was not employed pre-2002 was discriminatory.

I raise the cases of Essop and Naeem as examples of the legal difficulties in establishing structural race discrimination despite clear evidence that there are additional hurdles for BAME people within Britain preventing them fully integrating. They cannot be blamed for the structural issues that remain a prevalent barrier. It is inevitable that newer citizens into Britain would be disadvantaged by historic systems in place over long periods.

Sadly, the Casey review chose not to focus on any examples where multiculturalism has worked. 

The EHRC report appeared to focus more on the structural issues, with a recommendation that a race strategy was required to improve opportunity and outcome, without putting the onus squarely on the immigrant population. The EHRC stated that their own research showed some:“sections of society were advancing quickly while others are left behind, there are regional differences.  …At the same time, fundamental issues, including persistent disparities in employment and over-representation of ethnic minorities in the criminal justice system, show that structural injustices, discrimination and racism continue to be part of our society today. It is essential that as a society we recognise and address these structural problems urgently and comprehensively, including the continuing disadvantage experienced in some White communities”.The impetus behind the EHRC report was to promote a more holistic approach to dealing with racial barriers. While the Casey review simply did not touch on systemic issues in a helpful or inclusive manner.

Dame Casey identifies that “attaching more weight to British values, laws and history in our schools” is a way to promote opportunity and integration. However, she does not state who is not upholding British values. She recommends considering “what additional support or advice should be provided to immigrants to help them get off to the best start in understanding their rights and obligations and our expectations for integration”. Note the use of “our expectations” in this recommendation puts it on the immigrant to integrate, despite the need for integration to be a two-way street. The use of integration here puts an expectation on the “other” to blend in and not vice versa.

This problem also arises within the recommendation that there needs to be a developed “approach to help overcome cultural barriers to employment”. Whilst it is clear that a common language can promote equality of opportunity and outcome, the focus in this review is on those most marginalised and what steps they need to take to increase their integration. There is little recognition of the BAME people who face structural barriers but do speak English fluently (whether as a first or subsequent language). What is the role of the employer in this situation? How can the business community create bridges to the most excluded groups within our communities and why is this not addressed?

Other sections are equally accusatory and highlight that immigration based on skin colour above all else is the real issue. Dame Casey states:

“…non-EU nationals coming to Britain other than for study were more likely than Europeans to settle permanently. And among non-Europeans coming to Britain between 1991 and 2010, those from the “New Commonwealth” countries, particularly India, Pakistan and Bangladesh, were much more likely to stay permanently compared to migrants from “Old Commonwealth countries such as Australia.”

It is unclear to me how the above paragraph assists in promoting integration and opportunity. All it serves to do is communicate that brown people stay, white people do not. Perhaps I am unaware of such terms, but this report is the first time I have seen the reference to “new” and “old” commonwealth, which are clearly reminiscent of an “old boys’ network” who all know the unspoken rules. So when Andy Burnham MP made comments that EU freedom of movement was discriminatory against those non-EU members who are unable to come to work in this country, I wonder whether those of a similar view are referring to the “old” or “new” commonwealth citizens that they want to see more of in this country.

Another paragraph in the Casey review which caught my attention, and was also cited extensively on Twitter was this:

“…Policy Exchange has highlighted the creation of a ‘first generation in every generation’ phenomenon resulting from the high number of transnational marriages – with second, third and subsequent generations being joined by a foreign born partner, and children in each new generation growing up with a foreign born parent, which may be acting as a bar to integration in some communities…we were told in a visit that in one northern town all except one of the Councillors of Asian ethnicity (all men) had married a wife from Pakistan”.

This is seemingly focussing on a small community within Britain. There is no constructive reason for this example to have been included other than to highlight the “swarm” of immigrants that are coming to Britain. It is, frankly, an irresponsible and hyperbolic example that has no place in a document considering race strategy and integration. Of course, there are always isolated examples of segregation, but it is unclear to me why this has been included in the review save to create further anxiety and division. Further, I will not dwell on the insensitive positioning of the small section entitled “Asylum seekers” being put directly above the section entitled “Illegal immigration”.

Dame Casey’s review chose to pit race against race, religion against religion, immigrant against immigrant, white against black and brown. 

Sadly, the Casey review chose not to focus on any examples where multiculturalism has worked. There was no mention of the Sikh communities inviting all members of society to their langar halls for free food. Sikh gurdwaras have reported an increase in those eating in their langar halls during these periods of austerity and increased use of food banks. There is no mention of the fact that Muslims reportedly give the most by way of monetary donations to charities. There is no mention of the fact that “all ethnicities have seen an increase in the proportion with a degree-level qualification…” according to the EHRC.

There is also no obvious mention of the fact that large proportions of Asian men are being pushed into less secure forms of work, such as within the gig economy, restricting their ability to contribute fully to Britain’s economy because of exploitative working practices of certain employers.

The Casey review did not deal with the positive aspects of immigration at all, nor did it look at the structural barriers facing immigrants old and new. Instead, the review found that  “while there is plenty of evidence and plenty to say about the positive impact of immigration to the economy and culture of Great Britain, these aspects were not what responses to the questions brought out”. This rather begs the question as to what was asked of respondents.

Dame Casey’s review chose to pit race against race, religion against religion, immigrant against immigrant, white against black and brown. It chose to focus on the difference in some of the more extreme examples seen within Britain, without considering the mix of cultures that live in the rest of the country. It chose to focus on the fact that the non-white immigrants need to integrate, without appreciating that a large portion strives to do so only to be faced by structural barriers, and in some cases, overt hostility.

The Casey review chose to see only the differences between us all.

About the author

Kiran is a partner at Leigh Day specialising in employment and discrimination law. She has acted for a range of individuals advising on all aspects of employment law and has particular expertise in equality cases and in advising whistleblowers.  


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