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Men fight and lose the battle, and the thing that they fought for comes about in spite of their defeat, and when it comes turns out not to be what they meant, and other men have to fight for what they meant under another name. (William Morris - A Dream of John Ball)

Thursday, April 02, 2020

Government disowns Cummings - they should do it more often

Three months ago I had occasion to drop a note to a Mr Cummings after he advertised jobs with the Government on his personal blog. I pointed out to him that; “in your blog post, which is an extended job advertisement, you state that “we want to hire some VERY clever young people either straight out of university or recently out with with extreme curiosity and capacity for hard work.”

Section 39(1)(a) of the Equality Act 2010 states that “An employer (A) must not discriminate against a person (B) in the arrangements A makes for deciding to whom to offer employment”. Section 13(1) of the Act defines Direct discrimination as follows; “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Section 5 of the Act identifies “age” as one of the protected characteristics to which the provisions of the Act refers, and subsection (1)(a) of that section explains that “in relation to the protected characteristic of age a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group”, whilst subsection (2) clarifies that “a reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.”

I am a university educated 56-year-old man. As it happens, I am very clever, I have extreme curiosity and capacity for hard work and, as luck would have it, I have recently become available to apply for employment. However, by no means am I part of the age group of “young people” – I am part of the age group of middle-aged people. Your job advertisement makes it clear that you would not consider an application from myself for those opportunities which you are offering to “some VERY clever young people”.

You are therefore directly discriminating against me, in that you are treating me less favourably, because of my age group, than you would treat a younger comparator in the arrangements which you have made for deciding to whom to offer employment. Your conduct contravenes s39(1)(a) of the Equality Act 2010, read with s13(1) and s5 of the Act.”

Neither Mr Cummings nor Civil Service Human Resources replied to my concerns, so I initiated ACAS Early Conciliation.

Neither the Civil Service nor Mr Cummings would engage with ACAS at that point, so I lodged a tribunal claim (Number 2201082/2020), and that did get me some correspondence from the Government Legal Department.

The lawyer drew to my attention the answer to a written question in Parliament, asked on 8 January and answered on 14 January. Rosie Duffield asked the Minister for the Cabinet Office, “with reference to the blog post dated 2 January 2020 published by Dominic Cummings, what steps he is taking to ensure that the proposed recruitment processes are compliant with (a) General Data Protection Regulation, (b) the Civil Service code and (c) the Equality Act 2010.”

Oliver Dowden replied that “the blog invites people to get in touch to discuss opportunities. The blog post does not set out proposed recruitment processes.”

I think that there is something of a problem with the first of those two sentences. The blog post actually included the following text; “Send a max 1 page letter plus CV to and put in the subject line ‘job/’ and add after the / one of: data, developer, econ, comms, projects, research, policy, misfit.” Mr Cummings went on to say; “I will try to answer as many as possible but last time I publicly asked for job applications in 2015 I was swamped and could not, so I can’t promise an answer. If you think I’ve insanely ignored you, persist for a while.”

Nowhere in the blog post did Mr Cummings say “please get in touch to discuss opportunities”, on the contrary he asked people to send him CVs and, by referring to “the last time I publicly asked for job applications” strongly implied that the reason he was asking for CVs (which is generally the reason why anyone would ask for CVs) was because he was asking for job applications.

The first sentence of the Ministerial answer to the written question does not, on the face of it, accurately characterise the contents of the blog post to which it refers. The second sentence is more accurate however.

Mr Cummings did say “We want to hire an unusual set of people with different skills and backgrounds to work in Downing Street with the best officials, some as spads and perhaps some as officials.” He also said; “We need to figure out how to use such people better without asking them to conform to the horrors of ‘Human Resources’ (which also obviously need a bonfire).” It does not seem that “recruitment processes” were to the fore in his thinking.

The Government lawyer went on to give me this assurance that; “the Cabinet Office does not advertise Civil Service Jobs in way which is contrary to the requirements of the Equality Act” and that; “the Civil Service is a modern and diverse workplace, committed to promoting and ensuring equality and valuing diversity. In relation to civil service recruitment government meets the statutory requirements of the Constitutional Reform and Governance Act 2010 as well as the Equality legislation.” 

Since Mr Cummings’ attempt to advertise jobs (in breach of the Equality Act) has been disowned by the Government I have withdrawn my tribunal claim (which could not succeed if his blog post was not seen as setting out the arrangements which the Government made for deciding to whom to offer employment in accordance with s39(1)(a) of the Act).

Since I was alarmed by Mr Cummings’ approach to civil service recruitment back in January we have more urgent cause for concern about something which can impact anyone. I think that those of us who believe in democracy and the rule of law need to keep a close eye on those close to our Prime Minister at a time like this.

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