Discrimination: zero tolerance is the only answer, writes Gareth Brahams


First, Robert Schon, an equity partner at Simmons & Simmons, sues his partners for alleged race discrimination – a claim the firm says it will defend. Then, calls are made for quotas to ensure enough ethnic minority solicitors make it into the magic circle. Firms and the people working within them may be wondering what rights they have in relation to race and other anti-discrimination legislation.


Discrimination is currently unlawful on the grounds of sex, sexual orientation, race, religion or belief and disability. Come December 2006 discrimination on the grounds of age will also be prohibited.


The bad news for those calling for quotas is that ‘positive discrimination’ is just as unlawful as the traditional variety. With the exception of disability, anti-discrimination laws work in both directions. So it is just as unlawful to discriminate against men as women, whites as blacks and majority religions as minority ones. (Non-religious people may not be protected – perhaps they should march alongside non-disabled people to demand equal protection?)


Under the Race Relations Act 1976, partners as well as staff can sue for unlawful discrimination. This contrasts with unfair dismissal and most other employment rights, which are confined to employees. But it is not just partners who can sue – many independent contractors also have the same rights.


People do not have to be homosexual to claim discrimination on the grounds of anti-gay prejudice. If someone is being persecuted because people think he is gay, but in fact he is heterosexual, he can still claim. Likewise, if someone in the workplace takes offence at anti-gay jokes being made, perhaps because her brother is gay, she can claim she has been unlawfully harassed as this creates a hostile working environment for her on the grounds of sexual orientation. The same applies to race, religion and belief.


One further bit of bad news for the would-be discriminator is that it is not always the firm that carries the can exclusively or at all. Firms can avoid liability if they can show they have taken all reasonable steps to prevent discrimination taking place.


Typically this involves the implementation of an equality policy accompanied by appropriate monitoring of the workforce and equality training. The individual perpetrators can be sued in their own right regardless of whether the firm avoids liability for having taken reasonable steps.


The message for firms is clear. A policy of training and zero-tolerance is required. Nothing else will work.


Gareth Brahams is a partner in the Employment & Incentives Department at Lewis Silkink


Gareth Brahams