You don’t have to spend more than 30 years in employee relations and employment law to work out that there is more than one idea about what is ’fair’. When we call upon the government to produce legislation that is ‘fair’, or even ‘fairer’, we are really being a little disingenuous unless we define what we mean.
To a woman trying to get on the board who suspects her gender is an issue, fairness means getting a real shot at an open door. Business women are divided over the issue of quotas and there is no agreement about whether quotas are fair or not.
Is fairness about remedying historic discrimination, or is it about what is happening now?
Simplicity and clarity?
To the small business owner, fairness means being able to run their business without being burdened by complicated rules.
Is fairness always simple, or can we be simple and unfair?
We all get irritated by reports in the press that show one criminal getting a fine where another for the same offence gets a prison sentence. To us, consistency is part of fairness.
Some people find it offensive that soldiers injured in the line of duty get lower compensation than a woman who is not promoted because of her gender.
We all have some underlying idea of a scale or tariff, but we don’t necessarily agree about relative worth.
When we are on the receiving end of any kind of penalty, we do not demand that a strict tariff is blindly applied. On the contrary, our idea of justice and fairness then includes the idea that our circumstances, even our intentions, must be taken into account.
- The drunk driver begs not to go to jail for killing a child – “I didn’t mean it, I am sorry”
- The negligent manager does not want to take the blame for injuries at work – “We didn’t have enough resources, I was working long hours”.
- We can feel that “I am not the only one to blame” is something that means we should not get any blame at all (as opposed to everyone involved taking their share).
We need to decide what the ‘fairness mix’ is before we start demanding more of it.
Do you want to go for:
- Standardisation/set tariffs/penalties – where everything is predictable; or
- Appropriate decisions/penalties – which means there is an element of unpredictability and inconsistency
This is a dynamic tension in our entire legal system, not just employment law, between the two ideas of fairness.
- should people who are often late for work be treated the same, regardless of reason?
- should there be special consideration for the disabled, for those who live on a dodgy bus route, or have small children, or
- should it always be “three strikes and you’re out”?
If you believe in fixed penalties regardless of circumstances, you have a system that is consistent (but not necessarily fair on those who can’t comply).
Which would you rather be on the receiving end of?
We try in the UK to have it both ways. It is the essence of our society … this compromise, this balance, this wobble … and it is what the media complain about all the time.
Why did that person get six months and that person one?
Why did that employer win a tribunal and that one lose?
What kind of world do we want to live in?
If we can work out that, we can work out what kind of legal system we need to support it. But we must be realistic. Any system of legal rules and processes has some inherent problems, because:
- people write the laws (with varying degrees of drafting skills!),
- people try to explain the laws (with very mixed success),
- people try to comply with the law (and others pay no attention whatsoever) and
- people try to interpret the law when cases come to tribunal or court.
Sometimes we act like children, complaining when Daddy makes a decision we don’t like. But we are adults in a society that needs to make adult assessments about what it values, what it penalises, what it sanctions, and how it judges those issues.
The boss who today wants a streamlined tribunal system and no uncertainty may be the drunk driver tomorrow wanting their life and record and all mitigating circumstances taken into account.
The price of “society” is accepting that there is more than one point of view. It is not such a simple job to make things ‘fairer’ but we could start by acknowledging that there are competing standpoints.
For our earlier blogs in the ‘red tape’ series, click here for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation , click here for the third blog for our discussion on how government guidance notes affect us and click here for our fourth blog where we look at the opportunity to simplify legislation
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk
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