Let’s hope Keenan is seeking legal representation.

On the point of law, though, I think the Conservatives and LibDems would do well to come down firmly on the RRA in respect of allowing it in training in the first place — unless the government is seriously suggesting that ethnic minorities are less capable at school, or require more training because they’re less intelligent (which I doubt because I believe their intentions are good), then that is indefensible too.

Not 100% on this, as I don’t own the all singing/dancing multi-volume employment law reference that barristers use and I’m not a lawyer, just an educated layman whose done a fair bit of employment law - mainly defending collegeagues from a bullying incompetent of a boss - but…

I can find no relevant precedents on s35-38 of RRA, which means it looks very much like what’s being relied on here is the distinction between a traineeship (can discriminate to fill quota) and a job (must satisfy genuine occupational requirement to discriminate).

THe one relevant precedent here appears to be a s4 RRA case (discrimination against applicants/employees) against the Police in which it was ruled that Police cadets are trainees and not employees, hence RRA could not be applied (seriously!) - although all this means is that the ET ruled that it had no jurisdiction in an RRA case on cadet entry and that such a case would have to go to a civil court.

But…

This is a very specific ruling in its construction. Police cadets are considered trainees, in law, because without completing the training they would not be able to be employed as Police officers.

This is where it gets interesting because it poses the question as to whether what is being advertised in Keenan’s case is an actual traineeship or just a job which provides training, to which the s37(1) exemption would not apply.

If the training/qualification is a prerequisite for the eventual job - as in the case of the Police. Lawyers and, just to prove its not entirely elistist, gas engineers (who can’t work legally without CORGI certification) - then you have a traineeship and scope for discrimination.

If, however, the training is merely advantageous, i.e. someone could do the job if suitably qualified but without necessarily holding the specific qualification on offer, then that would a job with training and not a traineeship.

On the face of it Keenan has a case and should consult an employment specialist on this, as I cannot see that in the case of a museum assistant that the qualification on offer is such that the job could not be performed by someone with equivalent qualifications is another relevant field such as, say, teaching, a degree in history, etc…

It’s not certain that he’d win, much would depend on how an ET chose to view the test of whether this is traineeship or a job, which could be either objective, in which case only professions/jobs subject to legal restrictions on practicing without qualifications, such as doctors, lawyer, police, gas engineers, etc. would be able to offer traineeships, or subjective, in which case the ET would have to make a finding on facts to the effect that, in its opinion, the job could not be carried out by someone who lacked the specific training/qualification on offer.

Were I representing Keenan I’d argue the former, naturally, as unless there’s some arcane bit of legislation I’m unaware of I can’t recall that parliament has legislated on the subject of may or may not be permitted to work in a museum, and such a constraint would offer the best chance of success. But equally, I would expect an ET to decide to consider this more subjectively as there are jobs where a specific qualification is a prerequisite, or it would entirely unreasonable for someone to perform the job without a specific qualification/training, but which aren’t subject to statutory restrictions, and prepare accordingly.

If the case were brought and Keenan wins this argument then he wins the case as I cannot see that the Museum could then fall back on a claim of genuine occupational requirement for this job, not unless they could show, at the very least, that it relates only to ‘Black history’ and only to working directly with non-white visitors to the museum.

The other general point here is that, going back to you debate over the civil service traineeships, I would strongly argue that this could be challenged on the same basis.

It depends very much on how they’re operating the programme - if its generic graduate entry programme from which ‘trainees’ could go on to otherwise routine jobs in management, HR or clerical work, the kind of jobs that are not contingent on a specific qualification then a challenge could be made and would stand a fair chance of success - courts and tribunals tend to harbour a well-founded dislike of the kind of blanket exercises in arbitrary rule-making that bureaucrats so enjoy. A more specific programme offering entry to a specific type of job with specific qualifications would be more difficult to challenge as this would stand a better chance of satisfying the traineeship test.

That they can run these programmes and claim that they’re legal and above board may well be nothing more than a matter of them never having been tested before a court - we’re back to the good old English common law here, everything is permitted except that which is expressly prohibited, which also means that if you are relying on a particular intrepretation of a statute for which there are other possible interpretations then you cannot be 100% certain of the legality of your actions until you interpretation of the law has been tested and found to be correct by a tribunal, judge or jury.

Had I been chasing up the civil service recruitment issue, I would probably have asked them to back up their assertion that what they are doing is legal by providing references to the appropriate precedents/case law and not just to statute - if only to rattle their cages and force them to provide a full justification for what they’re doing…

…but then I can be a bit of a malicious bastard when I think a bureaucrat is trying to give me the runaround.

There are limited provisions for ‘positive action’ in RRA 1976 sections 35-38, but these relate specifically to education/training opportunities and not recruitment, where a genuine occupational requirement must be demonstrated.

In this case, the job was advertised as a ‘traineeship’ for two years, including a part-time study element - the actual text of the advery is as follows…

As part of the Renaissance programme, Brighton & Hove Museums Service is offering a two year positive-action traineeship.

Joining our dynamic service, you’ll have the opportunity to take a part-time postgraduate course in museum and gallery studies, with course fees and related expenses allowance covered by the service. With access to the Museums Association’s Diversity Benefits package, you’ll have a first or second class honours degree (or equivalent qualification or experience) and be eligible for home student university fees. As covered by section 37(1) of the Race Relations Act 1976, you’ll need to be of African, African-Caribbean, Asian or Chinese descent.

Without my Employment Law reference books to hand, I can’t check the precedents (if any) on this but it looks very much to me as if the law is being skirted here by use of the term ‘traineeship’.

If there’s a prior ruling at ET, EAT or in the Lords permitting this then the complaint is stuck - if there isn’t that I would lodge the complaint and take the case forward on the basis that this not training within the meaning of the Act, but an actual job, in which case genuine occupation requirement applies.

At the very least, if there’s no precedent, then there needs to be a test case the clarify the law as this looks like a particularly nasty piece of legal salami-slicing.

Keenan may also have a case under article 14 ECHR/HRA 1998 (non-discrimination) and article 2 of the First Protocol of ECHR/HRA 1998 (right to education) as the government’s derogation applies only to the Education Acts and not RRA 1976, and one cannot derogate from article 14.

Incidentally, someone on your side needs to put up a challenge to the new Housing Management Orders on private property as soon as a case emerges, under article 1 of the First Protocol (right to property) and article 5 (right to a fair trial - which includes any quasi-judicial proceedings) as HMO’s do not allow for an appeal.

I have written on this previously (and please do correct me if I am wrong), but I believe the Race Relations Act has specific provisions to allow this.

It has been done previously in Manchester Police as well as for the diversity recruitment campaigns of the Civil Service (see my previous post)

The A-list is a short-list that is unmeritocratic but any association worth its salt will pick the best candidate from their own short-list and the A-list combined. The A-list is wrong, I grant you, but not as wrong as stunting someone’s career because of their skin colour.

Oh, and on your first sentence, if you think it is likely that there is a racist bone in my body then feel free to call me racist again, otherwise, don’t please.

If this project has applied a definition of race as broad as is suggested, i.e. Chinese/African/Asian/Afro-Caribbean then they have no prospect whatsoever of making a reasonable claim to genuine occuprational requirement, you simply cannot draw a definition so broadly in employment law.

Moreover, Mr Keenan, has a big advantage due to the change in the burden of proof brought in in 2003 - he merely has to show that a discriminatory action has taken place, after which it would be for the project to show that this was justifiable in law - and there is no qualifying period for the right to bring such a case.

If this information is correct, he has near enough a slam dunk case.

None of this is relevant to the A list, btw, as political selection processes are entirely exempt from the provisions of the Race Relations Act.

The correct response in this matter is for Mr Keenan to lodge an ET1 with the Employment Tribunal Service, not least as there is no statutory maximum award in discrimination cases, but also because nothing will hurt this project more than getting nailed for discrimination.

We almost has a similar case locally a while back, in which the Asian Chair of a large voluntary organisation tried to instruct his Chief Executive to the effect that only an Asian candidate should be considered for the manager’s post at a particular branch office in an area with a large Asian community.

The CEO, to his credit, immediate lodged a formal complaint, which resulted in the Chair choosing to stand down at the organisation’s AGM rather than face a no confidence motion.

Oh, and the now former Chair of that organisation was both a councillor and, at the time, sat on the council’s equality scrutiny committee.

Given most of the main positions he has seemed to have embraced since before becoming leader, I would not be surprised that this is just one more opinion Cameron is holding back until such time as he will need it to prove that those Nasty Tories are just like Labour so it will be all right to vote for them. (It gives metrosexuals a warm fuzzy feeling when they go to the poles.)

The A-list does matter, the locals don’t have to accept it, but if they do choose someone from the list people will think it was discrimination even if it wasn’t. Therefor decrediting the party.

I would never vote for someone on an A-list.

I personally know 12, well qualified, experienced male applicants with a proven electoral record who have been denied a place on the A List to accommodate lesser qualified (often totally unqualified) females.

I know of one Asian female candidate who has actually resigned from the list as she feared that if she was selected people would assume she had made it due to her ethnicity rather then her ability.

Positive discrimination is already here. It is one of the aspects of “The Change Agenda” that I find most repellent.