I'm worried about Donald.
Donald is the recently appointed CEO of my best client, United Services Association Ltd. They're a great employer and their HR team is a delight to work alongside. But Donald is giving me sleepless nights.
His behaviour since his appointment has been alarming. He is insistent that the unsuccessful competitor for his role, the company CFO, be fired for gross misconduct. He openly refers to her around the office as "Fraudulent Freda". He was caught on a recorded conversation with the Head of IT openly bragging about forcing himself on women. When challenged about his conduct by the female Director of HR, he said she had "blood coming out of her eyes, blood coming out of her – wherever".
His political views, which he openly broadcasts around the workplace, are causing disquiet among employees. He advocates deporting all EU migrants, despite many of the company's employees being non-British EU nationals, and has referred to one ethnic group as bringing drugs and crime to the UK and being rapists.
His social media activities are bizarre. A frequent user of Twitter, he utilises the platform to criticise those in the company who don't agree with him. One such late night rant included referring to the company's Head of Communications as "unattractive both inside and out" and that he understood why her husband left her for a man.
The company has been inundated with grievances under its thorough Equal Opportunities Policy (which I helped draft under Donald's predecessor) and there have been several resignations already. The Director of HR is close to resigning (and we understand that Donald is close to dismissing her anyway), the Chairman of the company wants to instigate disciplinary action but the shareholders love him – they think he'll make the company great again.
Donald and United Services Association Ltd are figments of my imagination with a passing resemblance to the current President-elect of the United States. But the problem he illustrates is a very real one; what does it mean for HR practitioners and employment lawyers that the soon to be "leader of the free world" would have already been fired in most reputable workplaces?
Plus ca change
Clearly nothing has changed in UK employment law as a result of Donald Trump's election. He is president of another nation, after all. The Employment Rights Act 1996 and the Equality Act 2010 are still in place and there remains a host of legal reasons why my fictional Donald could face serious disciplinary action and the company liability from its employees as a result of his behaviour.
In a real life situation, United Services Association Ltd could be facing a constructive unfair dismissal claim from Freda the CFO, sex discrimination and harassment claims from both the Director of HR and Head of Communications and Donald himself could be facing gross misconduct charges under any reasonably drafted disciplinary rules and/or equal opportunities policy.
Winds of change
The legal framework of UK employment law, however, does not exist in a political vacuum; it is a politically charged area of law. The current suite of UK statutory employment protections reflects the political climate of the past twenty to thirty years: a move away from collective to individual rights; an emphasis on identity and protection from discrimination; and an increasing recognition that workplaces should not cover up significant failures.
Even a passive observer of politics in Britain, America or other western countries would recognise that the political climate is changing. In particular, the mainstream political consensus around group rights and protection from discrimination appears to be under threat. The premise behind the Equality Act and the equal opportunities movement is being challenged and politicians, like Donald Trump, are gaining popularity sometimes because, not despite, of their attitude towards women and minority groups.
Earlier this year, the government proposed that employers should be forced to publish how many foreign workers they employ. The policy polled well but was quickly ditched (some suspect because the numbers would have been embarrassing for government departments). Paul Nuttall, the recently appointed leader of UKIP (the third most popular political party in the UK), once described the sacking of Andy Gray from Sky Sports for unacceptable and offensive behaviour as a "victory for the 'right-on' PC bunch" and defended their conduct as terrace and pub "banter".
The backlash against "PC culture" has been most clearly articulated by Milo Yiannopoulos in an interview with Cathy Newman of Channel 4 News earlier this month. Yiannopoulos, who is Technology Editor of the right wing website Breitbart News, a Trump supporter and trumpeted spokesperson of the so-called "Alt Right" movement, said:
... the grievance brigade, victimhood, the idea that hurt feelings are some kind of special currency needs to come to an end and America agrees...
He talks about the "wage gap" being a conspiracy theory invented by feminists which "isn't real".
I suspect if you asked Mr Yiannopoulos or Mr Nuttall for their views on UK employment law, the Equality Act and equal opportunities in the workplace, they would be hostile to the current legal and cultural environment. The political leaders of today make the laws of tomorrow and it would be naïve to assume that the direction of travel of UK employment law will continue if there is a fundamental shift in political attitudes.
So what can change?
Currently, UK Parliament and our government are fairly curtailed in their scope to amend discrimination legislation. Key aspects of UK discrimination law are underpinned by EU legislation. For example, the introduction of age discrimination derives from the EU and the removal of the cap on discrimination compensation dates back to a European Court of Justice ruling in 1993 and the protections afforded by the Equal Treatment Directive. But as we all know, depending upon the nature of Britain's withdrawal from the EU, our government may be free from the jurisdiction of the ECJ and European legislation in a matter of years. The previous government already considered re-introducing a cap on discrimination compensation back in 2011 and it would not be surprising for such measures to be looked at again after Britain exits the EU.
Another limit on the scope of current UK governments to change our discrimination legislation is Britain's membership of the European Convention on Human Rights and its integration into UK law under the Human Rights Act 1998. However, the repeal of the Human Rights Act (and replacement with a so-called "British Bill of Rights") has been on the radar for years. Theresa May, the current Prime Minister, is known to want to withdraw Britain from the European Convention and has spoken on the topic as Home Secretary earlier this year.
Where are we going?
It currently appears likely that Britain will have withdrawn from the EU (and the ECJ's jurisdiction) and the European Convention within a few years. In such circumstances, whilst we don't know the precise scope of the exit and, in particular, the extent to which the past ECJ case law may continue to apply, our government may well be relatively unfettered in its scope to redraw the employment law landscape. Many assume that Britain's discrimination legislation is broadly popular and may not be under threat after Britain's withdrawal from the EU
I would argue that this assumption may be misguided. In a political landscape where attacks on the "PC Brigade", feminists and "social justice warriors" (in the words of Mr Yiannopoulos) are gaining popularity, it would be foolish to assume that the current status of equal opportunities will remain intact. For example, a YouGov poll from 2012 (when the political climate was considerably more temperate) found that a majority of Britons would welcome a cap on discrimination compensation. My guess is that opinions have hardened in the time since.
Workplaces can currently discipline or dismiss their "Donalds" under current legislation but some of that legislation is likely to come under attack. In the meantime, the "Donald Trump did it" defence may be coming to a workplace near you.