Fairness and equality are essential ingredients for a successful society

Mark Hammond

Fairness matters. People know it when they see it. Fairness, however, is not the same thing as equality and we need both if we are going to be not only a decent society, but a successful country.

So, why would fairness matter? My argument is a simple one really. It matters because unless people feel that society, the economy, their employer, the country is working in ways they would describe as fair, then it is not a sustainable proposition. As much analysis has started to show, some of the basic unfairness which can affect a society also contributes to that country being less successful for everyone.

Research shows that less divided societies do not have to make a false choice between economic success and greater equality and fairness. They can have both. As the Equality Trust have shown it is increasingly clear that less divided societies reap the benefits across a raft of health and social outcomes: people live longer and are less likely to report ill-health; people are less likely to develop mental health conditions; educational outcomes are better, communities are more cohesive and violent crime is less common. And these benefits do not just improve the lives of those with the least: they can be seen across all sections of society. And importantly it greatly reduces the cost of public services to remedy these ills, which in turn leaves more capacity for the economy to grow and increase overall prosperity.

Fairness also matters because it makes organisations work. I am currently managing our way through a disruptive and difficult change programme to bring the Equality and Human Rights Commission (EHRC) to a size which matches our resources.  It means we will be a third of the size of a few years ago.

That’s very hard to do and for people to accept and cooperate with. What will make it possible is if I can convince them that we are being fair, transparent and rational about the changes we have to make. What won’t work is if they believe we are not being fair, that we are favouring some group or office over others, or not paying attention to the needs of different individuals.

It’s really not about whether or not we make the changes. Not even, I believe, about whether someone loses their job or not. But about whether the way it has been done, the opportunity they have had has been fair to them.

Much the same applies in many walks of life. People can feel fairness, they have an instinctive sense of what is fair and what is not.  It’s not always measurable or even tangible. But it’s there nonetheless.

I think people have a clear sense of what is fair in public life particularly in the current period when there is enough pain to be shared out for everyone. People felt the original child benefit proposals from the government were unfair. They feel that the share everyone contributes to tackling the deficit must be in some way fair.  And they are sure they know what is unfair when they see it, or at least when it’s on the first page of their morning paper. I am not sure that it matters how someone explains or spins the explanations, they will never shift that instinctive sense of fair or unfair.

Some of the issues we deal with in the EHRC are also expressing that public sense of fairness in rules and standards and reflect, of course, how that sense can change over time. The signs new arrivals to this country might have seen in the hotel window were not seen in their day as unfair, now they would be seen as unacceptable in terms of fairness and in terms of equality and the legal standards we are charged to uphold.

Fairness in many of these contexts is quite an elusive idea, particularly because it can be hard to point to anyone losing out in some of the cases, or that those who are feeling the sense of injustice are personally affected. That’s one of the ways I think it can be different from equality.

There is often conflation in the debate between fairness and equality, among politicians, in the public and in the media. At times, of course, this is not an accident. Fairness plays better than equality as a rallying cry, and is closer to many peoples’ own descriptions of what they believe in

Equality is, I would argue, a different concept, and particularly different in the terms the EHRC deals with. Which is about the specific standards parliament has set down and which we regulate, on how individuals should be treated. And that the characteristics which define them must mean they do not receive worse treatment as a result.

This means at times both something more and something less than general fairness.

It means more when we are dealing with specific cases of potential discrimination. We have supposedly moved on from the days when being pregnant meant losing your job; or being gay meant you couldn’t get a job. Or a hotel room. Yet the national advice line is taking 44 calls a week from pregnant workers being made redundant, and our own helpline is seeing an upsurge in calls from fearful expectant mothers.

We have certainly not yet moved on from the fact that being from an ethnic minority means you are far more likely to be stopped and searched by the police. That might also be seen as unfair, but it is also a breach of the equality legislation and at times the human rights protections we all should enjoy.

It can also mean something less, because we are often talking about achieving a level playing field, not what the result of the match might be. The public sector equality duty, for example, is all about the due regard which public bodies must have for their equality duties when they take decisions. But it does not apply to the results of those decisions in practice fair or otherwise. You can meet equality requirements and still be seen to be unfair.

We could follow the letter of equal pay for equal work and some women will still earn less than their male comparators. This is because of the simple fact that women take time off to have children and don’t always climb the employment ladder as quickly as a result.

You can take a decision to cut a service which will adversely affect a protected group and damage their equality, as long as that decision is taken properly. That might be seen as unfair, but could meet the equality requirements.

We recently undertook an assessment of the 2010 spending review to find out the extent to which the government lived up to its equality obligations under the public sector equality duties. We also wanted to use this as something of a lens to establish how successful the government was in making fair financial decisions at a time of considerable austerity. To remind you, the equality duties don’t stop you from taking difficult decisions, they just say that you have to think carefully through what groups are going to be adversely affected and what it might be sensible or proportionate to do that.

No-one has done an exercise on this scale before and what we found was fascinating.

There was no lack of intent to take the obligations seriously there were several missed opportunities which could have made fairer policy, better outcomes and saved money. A relatively straightforward analysis of impact of the abolition of EMA (educational maintenance allowance would certainly have revealed that this measure would have a disproportionate impact on BMA students. Had this been identified, then effective mitigations could have been considered and the policy would have appeared fairer. Better use of equality analysis might also have meant that the new pupil premium might have been targeted more effectively at those groups with the worst educational outcomes, less money could have been spent and thus fairness, efficiency and economy could all have been met.

The duties can be much more than bureaucratic box ticking. Used properly they provide the mechanism by which fairness can be institutionalised in policy making rather than be peripheral to it.

The government has started a review of the PSED (public sector equality duty), and we will certainly be among those who want to look at ways the duty could be less bureaucratic and less tied up in red tape but end up having a much stronger impact on the real protection of peoples’ rights to equal and indeed fair treatment. If we believe that fairness and equality really count – and count in terms of success and prosperity as well as ethics – then I hope this review can be a chance to explore how we can frame duties on public bodies which really deliver sustainable improvements.

Fairness has a broader application, and a more ambitious scope in some ways than equality. For example, if we were to greatly improve the way bankers are recruited and promoted so that the current gaps in employment of many groups were remedied, we would have made great progress on that aspect of equality. But if they were still paid as they have been we might not have made much impact on what many people think is fair.

I believe both fairness and equality are essential ingredients for a just, tolerant and successful society. No one should have less of an opportunity to succeed in 21st century Britain because of discrimination or prejudice. We are fortunate to live in a country where this is less of a problem than in some, and less of a problem than it used to be for us.

However, this is not the same as saying we can go back to a dependence on general good will and abandon rules and regulation. Nobody including the EHRC wants pointless regulation. And we do not want to reach for the law every time we come across a problem either.

But reducing bureaucracy can all too easily become a reduction in protection. We need to be prepared to will the means of achieving fairness and equality as well as the ends. As we found when we assessed the 2010 spending review, there was a lot of goodwill and a great deal of intent among ministers to achieve a fair outcome. But in some important respects that was not the same as testing the potential impacts of decisions on equality.

One result of that was that some decisions and some spending could have more effective in tackling the very issues ministers wanted to address.

This is where we believe the equality duties are firmly in the camp of better public policy making. When assessing the spending review we had no wish at all just to find fault or criticise. We wanted, and I think we did, to contribute to thinking about how we can all do it better in future.

No one in the EHRC pretends for a moment that the changes to public spending will not have adverse impacts for vulnerable people and groups. We do expect that those making the decisions in Whitehall and in every council chamber and health board in the country will be fully aware of the consequences of their decisions and will have thought about how adverse impacts might be mitigated.

I think that when communities look at those decisions what we might see as the operation of equality laws, they will see as an issue of fairness.

There is, of course, possibly a large gap in the current equalities legislation, in that it does not deal with socio-economic issues at all. In a number of cases improving the opportunities and treatment of some of our protected groups will contribute to closing some of those gaps.

Historic discrimination tends to come in clusters of problems including relative benefit from society’s economic progress. But these are not the same things and I suspect that any government would find it challenging to try and legislate for equality in the sense we use it around economic disparities. That means that it may well remain in the sphere of fairness but will be reinforced by the work which increasingly shows the real impacts that unfairness has on societies, economies, companies and countries in the long run.

We believe that the business case for equalities is increasingly being made. I recently met with a firm of head-hunters who are making a great success of placing people with disabilities in city firms. The firms have realised that they are just denying themselves access to a talent pool by not looking as widely as they can.

We have seen considerable research on the decision making improvements which more gender balanced boards can bring. For example, research has shown that having at least three female board members out of 10 is associated with better company performance, both financially but also in terms of other criteria such as leadership, values, motivation, capability, direction and so on.[1] This has been attributed in part to the wider range of experience, backgrounds and lifestyles that a diverse board can draw on when making decisions.

There is an equally strong case for the benefits of fairness and many of those here today have made substantial contributions to that work.

Which means I think the successful company – the organisation of the future -  will want to achieve both equality in the way it recruits, retains, promotes and treats its staff in terms of their identities and characteristics. And fairness in the balance between executive and new entrant pay, and the ways in which their success is translated into reward and remuneration.

All of this, as you will understand, underlines our view that far from being a drag on economic growth, or a red tape ridden barrier to prosperity,  equalities and fairness applied well will help companies not hinder them.

I think there are strong arguments that the failings of equality we are still battling are themselves a major contributor to the wider challenge of a fair society. Indeed, the continued lack of equality in education, the professions and in areas of public life contribute to a less diverse society and a less diverse sharing of power. In itself that has to be an element in holding back a fairer society.  I can’t prove to you that more equality, leading to more diverse power groups, will produce a fairer society. But I do think it has to be worth trying.

[1] McKinsey & Co (2007) ‘Women Matter’, available at: http://www.mckinsey.de/downloads/publikation/women_matter/Women_Matter_1_brochure.pdf

For more information about The Equality and Human Rights Commission visit:  www.equalityhumanrights.com

3 Comments:

  1. savetheehrc

    I think that the Fabian Society might have done a little more research into Mr Hammond’s before inviting him to wax lyrical about fairness. http://www.theargus.co.uk/news/6242757.Sussex_council_bosses_impose_pay_freeze_after_double_digit_salary_boost/

    And as Ciaran O Maolain quite correctly points out, what has he got to say about the 62% cut to the EHRC budget which has seen up to 300 staff leaving the Commission, the closure of our helpline this month, the end of our grants programme to NGOs providing advice and representation to the victims of discriminatin, the closure of our mediation service which helped people avoid costly court cases, and plans to get rid of all our caseworkers by Christmas. The Commission, under his leadership, has also failed to oppose government plans to remove significant powers and functions via Clause 51 of the Enterprise and Regulatory Reform Bill which Professor Bob Hepple QC says will leave equality legislation ‘rudderless’. And wouldn’t you also expect the Commission to denounce the introduction of prohibitive fees for employment tribunal cases and the announcement today on a new cap on unfair dismissal cases, provisions also included in the ERR bill.

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  2. Alan Fearnley

    How do you translate the concept of Fairness into something tangible? Can you legislate for it? Can it be used as a lever to deliver changes in society? Can it shift the balance of power away from vested interests in favour of the poor and disadvantaged? No, but it does give our political elites something to pontificate about while they seek to avoid the far more difficult challenge of tackling deep-seated inequality and discrimination.

    The EHRC’s job is to enforce equality law and to protect human rights. That is what it was set up to do.. The Coalition Government’s agenda is to muddy the waters by promoting nebulous concepts such as ‘fairness’ and ‘light touch regulation’ as if this had anything to do with the EHRC’s mandate.

    It is also difficult to see how standards of fairness or equality can possibly be maintained – notwithstanding Mr Hammond’s gallant efforts – against a backdrop of such extreme and politically motivated budget cuts to his organisation.

    If we are being honest, people who promote ‘Fairness’ see it as an alternative to equality. It is about maintaining the status quo. Its advocates include the likes of Theresa May, Lynne Featherstone and Francis Maude each of whom have actively contributed to the dismantling of the EHRC.

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  3. Ciarán Ó Maoláin

    Given that Mark Hammond shows a clear understanding of the enormity of the range of issues in the UK in relation to equality and human rights, I’m surprised that he didn’t find space in the article to denounce the onslaught on equality and human rights institutions such as the EHRC, which is losing another 100 staff over the next three months.

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This is a part of our fairness and responsibility series comprising of blogs following on from talks given at the AHRC Fairness and Responsibility in an Unequal Society Conference.

The conference marked the end of a four-year project on inequality, responsibility and fairness, funded by the Arts and Humanities Research Council at the University of Exeter. Four panels composed of prominent policy-leaders and academics debated the issues in a forum for the exchange of ideas between policy and academy.