Greetings, it’s the last Friday of the month which means it is time for a round-up of all the employment law news. March’s update had features on gender pay gap reporting, NMW offenders and changes to the taxing of settlement agreements, last week’s case law update had cases on shared parental leave and early conciliation.
Imagine you work for a company with a diverse customer base; people buy your product regardless of their gender, religion, sexuality or race. Now, imagine the management of your company implement a series of measures to remove a certain demographic from your customer base. The members of this demographic have purchased your products for over 70 years and started purchasing the product when the company’s customer base was small. These customers also buy as much per person as other demographics.
The above sounds nonsensical, doesn’t it? No business would ever do that. Unfortunately, if you replace the word company with government, customer with citizen, product with national productivity and purchase/buy with NI contributions then that is exactly how the current Government has treated the Windrush Generation.
For the uninformed, the Windrush Generation is a term used to describe post-WW2 Afro-Caribbean migrants and their descendants, named after the first boat that transported them over in 1948. By 1948, the UK workforce was depleted by the war and subsequent post-war mass white-British migration to the United States and Canada. Phil’s three aunts all emigrated to the US and Canada in the 1950s and 1960s.
To replenish the workforce, the UK Government passed the British Nationality Act 1948, which gave any person who came from the UK or its colonies the right to live and work in the UK. Many people from Afro-Carribean colonies decided to migrate.
In 2010, the Home Office destroyed documents that proved the Windrush Generation had the right to live and work in the UK. In 2013, the Home Office, then managed by PM Theresa May, introduced a ‘hostile environment’ policy to make right to work/reside checks a constant part of daily life. Everyone needed documentation to set up bank accounts, access healthcare or rent a house.
As a result of the destroyed documentation and hostile environment policy, many Windrush Generation citizens were unable to access healthcare, claim pensions and – in some cases – remain in the UK, after a lifetime of living and working here.
In 2018, a Civil Service report found that staff for Home Office agencies; Border Force, Immigration Enforcement and UK Visas & Immigration, experienced high levels of discrimination and harassment at work. For some agencies this was twice the civil service average. Staff at the Home Office witness discrimination more often than other government departments due to conscious or subconscious bias of the colleagues/superiors.
Whilst not an employment law issue this is a harrowing example of race discrimination and harassment under the Equality Act. The Equality Act does not just apply to employers, it applies to everyone, including public bodies.
Under the Equality Act 2010, indirect discrimination is described as a provision, criterion or practice which is discriminatory to a person because of their protected characteristic. By implementing a hostile environment policy, the Home Office has arguably discriminated against Afro-Caribbean British nationals because they often do not have documentation to prove their rights to live and work in the UK.
Direct discrimination is defined as a person being treated less favourably because of their protected characteristic. By introducing this policy after destroying the supporting documents, it could be argued the hostile environment was directly discriminatory.
Finally, harassment is defined as conduct in relation to protected characteristic that creates an intimidating, hostile, degrading, humiliating or offensive environment. Note to Home Office: When naming a policy, do not name it after the definition of a discriminatory act.
A body who exercise a right of public power – such as a citizen’s right to reside and work – has a duty to do so lawfully and fairly. In exercising this right, the Home Office seem to have been prejudiced against the Windrush Generation, either directly or indirectly and have subsequently harassed them. These acts of discrimination could partially explain why compensation and passports are being awarded to members of the Windrush Generation as the conduct is not becoming of a public body or society as a whole and compensation for discrimination victims is uncapped.