Equality in the Sibling Society

Employer as pseudo-parent; employee as pseudo-child

In a strange but prescient book, published in 1997, the eccentric poet and folklorist Robert Bly described modern liberal society as being made up of ‘siblings’. Nobody, according to Bly, wants to take the responsibility of metaphorical parenthood, which means taking tough decisions on the behalf of others and dealing with the consequences. Instead, everybody prioritises an ‘equal’ mode of living. Their morality is therefore a sibling morality, and anybody who has ever had a brother or sister, or more than one child, knows exactly what this means. Siblings are obsessed with being equal. But they are also constantly, rivalrously jostling to be the favourite. To paraphrase Orwell, things must be fair, but things ought to be fairer to them than to their brothers and sisters. And they are eternally looking to parental authority to step in to resolve conflict on their behalf.

This perfectly describes the essence of modern liberalism, understood as the form of political reason which justifies the state’s position on the basis that it administers the relationships between free individuals who are entitled to equal concern and respect. Under this form of liberalism, we are all brothers and sisters. But the thing about brothers and sisters is that they need parents to act as go-betweens. The parent we tend to fall back on most is the state: benevolent, but authoritarian – all seeing, all knowing, and biddable by special pleading to bring down the hammer on our sibling rivals. Increasingly, however, we fall back on other impersonal authority figures too, the employer being the most obvious example.

I was thinking about all of this when reading the Employment Tribunal’s decision in the recent case of Follows v Nationwide Building Society. Mrs Follows was a Senior Lending Manager (SLM) in the commercial lending wing of Nationwide (for foreign audiences, a building society is basically what Americans call a ‘savings and loan’) who was on a Working From Home (WFH) arrangement where she would spend 2-3 days in the office and the rest of her time at home. This was convenient for her, as she had caring responsibilities for her elderly mother, who had a serious heart condition.

The WFH arrangement lasted until 2017, when a decision was made by the management of Nationwide to make some SLM positions redundant, as it was going to orient itself away from commercial real-estate lending. Mrs Follows was one of the SLMs who eventually ended up being made redundant (in early 2018), and the decision appears largely to have been based on her unwillingness to end her WFH arrangement and be in the office full time. Her manager said in the Tribunal hearings that ‘we felt strongly we needed a greater presence in the office’ and that ‘it’s so much better if they are sitting next to each other…the informal day to day supervision [of junior colleagues] that was lacking [sic]’. Mrs Follows refused on repeated occasions to end the WFH arrangement, and was eventually therefore selected as one of the SLMs to be made redundant.

In other words, a decision was made by a business to change emphasis and, as a result, to make some staff members redundant, and it based its decision in part on whether staff were willing to stop WFH or not. In the olden days, this would have been normal. It would have been unfortunate for Mrs Follows, undoubtedly, but it would have been recognised that this was essentially a matter of bad luck. In the sibling society, however, there is no such thing as bad luck; bad outcomes can only be the result of unfair treatment. And, sure enough, Mrs Follows duly sued Nationwide for unfair dismissal and discrimination, and won. She recently was awarded a payout of some £350,000.

The proximate reason why Mrs Follows was able to do this was because of the existence of the Equality Act 2010, which extends the concept of indirect discrimination into the field of disability. The Equality Act, despite copping a lot of flak from left and right alike, is for the most part a very banal and unobjectionable piece of legislation – bringing together in one statute the various pre-existing prohibitions on discrimination that previously existed in UK law. It has been unlawful to discriminate on the grounds of race, sex, etc., for a long time in this country, and it is totally uncontroversial that this should be so. And ever since the enactment of the Sex Discrimination Act 1975 we have recognised that discrimination can be indirect – i.e., carried out through a requirement or condition that ostensibly applies to everyone equally but affects members of one sex or race differently than others.

Hence, to use the example provided in the explanatory notes to the Equality Act 2010 itself, if a training opportunity is only available on a Saturday then although it in principle is available equally to everyone, by implication it excludes observant Jews and hence is indirectly discriminatory. It is recognised that sometimes there is an overriding reason why a practice will have indirect discriminatory effects (for example, the hoary old chestnut of fire service physical tests, which obviously indirectly discriminate against older people, disabled people and women), so the law says that such discrimination is unjustified unless it can be shown to be ‘proportionate means of achieving a legitimate aim’ (Equality Act 2010, s. 19). This will usually be the employer’s defence.

Mrs Follows’ claim succeeded on two separate discrimination grounds. In the first place, she was able to make out a claim that she had been subject to ‘indirect associative disability discrimination’. The reasoning here is as follows: Mrs Follows was a carer for her disabled mother. In requiring SLM staff to work full time in the office, Nationwide was per se indirectly discriminating against her because of her association with a disabled person – it was creating a general policy that applied equally, but in a way that affected Mrs Follows in a more serious way than it would affect other SLMs. This, the Tribunal held, made the aim of the decision illegitimate in itself. But even if the aim of having SLMs working in the office full time was not illegitimate, it was not being carried out in a proportionate way: the decision to ‘delete’ SLM homeworking roles was based only on a ‘subjective view’ that it was better to have SLMs in the office full time, and was not based on ‘rational judgement or on any reasonable assessment of supervisory requirements’.

In the second place, Mrs Follows also succeeded in arguing she had been subject to indirect discrimination on the grounds of sex. Since 58% of carers are women and 42% are men, and since women make up 72% of the people receiving state benefits as carers, then QED the requirement for SLMs to work full time in the office had a ‘disparate impact’ on women and was therefore indirectly discriminatory. The policy did not have a legitimate aim and in any case was not a proportionate means of achieving it even if it was – on exactly the same reasoning as applied with respect to indirect associative disability discrimination.

It is of course hard to avoid the conclusion that, while the material facts of the dispute all took place in 2017 and 2018, Covid figured in the Tribunal’s calculus, here. The Tribunal hearings themselves took place remotely in December 2020, at the very pinnacle of Covid panic. And it is absolutely impossible to believe that this background had no unconscious influence whatsoever over the Tribunal’s decision to find in favour of somebody who was insisting they should have a right to WFH. It is worth making the observation, in other words, that this was not a Tribunal that was calmly assessing WFH arrangements in the abstract. It was a Tribunal assessing WFH arrangements in a world in which WFH had suddenly become normalised and understood to be essential for ‘safety’ by the laptop classes. This is important to bear in mind.

But nonetheless, the decision is a stark indicator of how the relationship between employer and employee has changed. In the sibling society, in which all are equal but all are rivals, the employer is increasingly conceptualised as having a pseudo-parental role vis-à-vis its employees. Employers loudly trumpet their commitments to caring for their workers, supporting their mental health, and helping them to achieve better ‘work-life balance’ and commit to purportedly beneficial ‘values’. (Anybody with a professional job in the modern age is more than familiar with this sort of nonsense.) And we shouldn’t really be surprised that, as pseudo-parents, employers are increasingly thought to have the important function of achieving equality between the employees who are their pseudo-children.

Nor indeed should we be surprised that the pseudo-children in question should become expert in ensuring that their treatment is fairer than everybody else’s – that, like any good sibling, they should be treated more equally than the rest. I am not suggesting here that Mrs Follows herself behaved unfairly or unjustifiably (actually, I think looking at the evidence presented to the Tribunal that she was treated poorly and had a good old-fashioned claim for unfair dismissal that would have succeeded on its own – but that’s another story). Rather, it is that her conduct was a perfectly rational and understandable response to the unfolding of events, given the way in which the law has unfolded and the relationship between employer and employee is nowadays conceptualised. She was behaving, in other words, like an impeccable liberal, and hence like an impeccable sibling: making a claim for equal treatment in such a way as to defend her interests against her peers.

This is illustrated by a particularly interesting feature of Mrs Follows’ case, which was that another employee – a certain Mr Gregory – was adduced by Nationwide as an obvious comparator. Mr Gregory had also been employed on the same WFH basis as Mrs Follows, and had been made redundant after a similar process on similar grounds. Nationwide’s point, and the reason for bringing him up, was that he was dismissed and was not a carer for a disabled person, and therefore the redundancy process was not directly associatively discriminatory against carers. The Tribunal agreed with them on this, even while finding that the process was indirectly associatively discriminatory.

But nobody thought to mention (why would they?) the position of Mr Gregory himself – having to face the bad luck of being made redundant and without any basis to bring a claim for unequal treatment. Since he couldn’t point to ‘disparate impact’ or an associative relationship with a disabled person or similar, he simply had to play the hand he was dealt. All pseudo-children are equal, in other words, but some pseudo-children are more equal than others. The success of the claim for equal treatment itself produced a distinctly unequal outcome; Mrs Follows ought to have kept her job, and received a large payout because she didn’t, because of her having what the law holds to be an ‘indirect protected characteristic’ of being a carer for a disabled person. Mr Gregory just had to get on with things because he didn’t have such a characteristic. And, to make the point perfectly clear, if Mrs Follows had been allowed to keep her job on the basis that the WFH arrangement was necessary in her case given her circumstances as a carer, then the business needs of her employer would have dictated that some other hypothetical Mr Gregory-type figure would have had to have been made redundant instead, simply by dint of his not being a carer or possessing some other salient characteristic. This is precisely the opposite of what ‘equality’ is supposed to mean.

This is in one sense just another way of putting the point that perceptive critics and defenders of equality law have always made, which is that ‘discrimination can only be remedied by discrimination’. Equal treatment for one person will often end up meaning unequal treatment for somebody else when the chips are down. As Stanley Fish (a clear-headed and honest proponent of positive discrimination/affirmative action) was wont to remind us: 

Fairness for everyone would be possible only if everyone’s interests were the same, if everyone were in agreement as to what baseline considerations must be in place for a procedure to be labelled ‘fair’. But if that were the case, the question of fairness would never be raised. It is raised precisely because everyone’s interests are not the same…The amount of unfairness in the world can never be eliminated or even diminished; it can only be redistributed as in the course of political struggle one angled formulation of what it means to be equitable gives way to another.

He was undoubtedly right about this, as Follows v Nationwide aptly demonstrates. If Nationwide had done as the law requires and taken Mrs Follows’ characteristics properly into account, and therefore not made her redundant, the axe would have fallen on somebody else instead. Unfairness would not have been diminished in that scenario - only redistributed.

This is, of course, tragic in the technical, literary sense. As Lionel Trilling once put it, very perceptively, the attempt to settle moral problems often just displaces them. You don’t generally solve one moral problem without generating another, and righting the wrongs of one kind of discrimination ends up in discrimination being deployed elsewhere. It is not in other words that there are no easy answers; it is rather that there are no satisfactory answers at all. Equality law has winners and losers, and we should be more honest about this.

But there is also a wider point to be made here that is often missed in discussions about equality: for all that non-discrimination is a perfectly laudable motive, it has the effect in practice of fundamentally transforming social relationships, encouraging the individual to look always to impersonal authority for succour, and as a consequence diminishing their capacity for phlegmatic and self-sufficient responses to negative circumstances. In the USA in the 1960s this was undoubtedly necessary and unquestionably moral. In the UK in 2023 (or in 2018, when the facts of Follows took place), however, it begins to seem less like an entirely justifiable remedy for eliminating deliberate discrimination (which as employment tribunals unfailingly point out is now thankfully vanishingly rare), and, at times, more like a freestanding license for rivalrous siblings to pursue their own self-interest at the expense of others. This is not of course to say that equality law should be abolished – far from it - but rather that we need to recognise that its effect can be to foster the type of equality that siblings often demand – sharp-elbowed and conflictual rather than mutually supportive and communitarian.

And this brings us back to Bly. His book ends with a list of some ideas about what an adult is, given that – for the first time in human history, in his view – we seem to have forgotten. One of these characteristics is that ‘an adult is able to organise the random emotions and events of his or her life into a memory, a rough meaning, a story’. A necessary feature of this element of adulthood is the capacity to understand oneself as an agent who can respond to misfortune and overcome it – that is, in the end, what all good stories are really about. Yet in a world in which the state, or the employer, is always there to step in to rescue us from life’s unfairnesses, this capacity cannot adequately develop, and the result is the inculcation of a perpetually childlike response to circumstances. Whenever something goes wrong, it must be because some higher authority - a pseudo-parent - was being insufficiently protective of one’s interests: one was not receiving the equal concern and respect to which one was entitled. This way of thinking, it seems to me, is now very widespread, and while in some cases it is clearly justified, in others it, just as clearly, has the consequence of undermining adult responses to the vagaries of life.

This may be a price worth paying for equality law, but we should be honest about the fact that we are indeed paying it. And we should especially be honest about the way in which it works to construct a pseudo-parental relationship between employer and employee, and hence a pseudo-sibling relationship between employees themselves, which I think to most people truly merits the description of being dystopian, and yet which we see growing remorselessly more common and more extensive as the years go by.