When is discrimination not discrimination

Discrimination is now to all intents and purposes legally proscribed in most areas of employment law although probably not in practise. No employer can eliminate candidates based on their ethnicity, religion, sexual orientation or disability.
The one area it is seems that it is still possible to discriminate is in education. Employers and recruiters still issue job specifications which demand that the potential candidate has a minimum educational requirement. This could be a minimum of a Bachelors Degree, a minimum grade of say a 2:1 or as in the case of many professions the need to have a professional qualification. Certainly in the field of finance it is prevalent and increasingly so that anyone wishing to work in any form of senior finance position must have a professional qualification from one of the self appointed finance bodies providing such education. In effect a system of licencing evolves in order for any individual to trade in one of these areas.
Is that a good thing? Well maybe. There is nothing inherently wrong with having people with good educations practising certain skills and improving those skills by acquiring targeted training. However is it ever right to exclude someone who can demonstrably show an ability in a certain area simply because they do not have the right certificate? Would it be reasonable to exclude an athlete say who can run the 100 metres in under 10 secs from competing simply because they hadn’t been to running school and been taught how to run properly? Should it be a requirement that all CEO’s should also be MBA’s in order that we can have confidence that they have the ability required to manage the company. After all if anyone should be “qualified” it is the person with whom the buck stops. I am not sure many would necessarily agree. What counts is their ability to organise and run a business and the thing that shows that is previous experience not a certificate.
You might say “you wouldn’t allow a surgeon to operate unless they were a qualified surgeon” but I personally would be more comfortable knowing that they had performed 100+ of the operations rather than none but had been to school. Experience trumps education every time.
The purpose of education should be to ensure that people have better skills and to an extent it does but education should not become the sole criteria for assessing suitability for one role or another. Education ensures only a minimum standard of attainment. What education does not do is guarantee a high standard of skill and ability. The highly qualified people, legal, financial and managerial, who ran Enron, WorldCom, Lehman Brothers, Royal Bank of Scotland, Lloyds TSB, Barclays, Arthur Anderson, Guinness, Polly Peck, Long Term Capital Management, Bear Stearns, Northern Rock, AIG, Anglo Irish and many, many more both large and small failed to avoid difficulties which many people would presume by virtue of their training and education would be avoided. I am not attaching any blame to those “qualified” workers who were working for such companies at the time of any corporate difficulty but stating that education is not something that gives any guarantees that such failures will not arise and that to be base employment practises solely on a level of educational ability can in itself have drawbacks.
In my area of expertise, production accountancy, it is now increasingly common that anyone applying for a job has to be a member of one of the three accountancy training organisations (ACA, CIMA or ACCA). But production accountancy is not about numbers it is about understanding the process and unless you understand how the physical process works and can explain that process to others both in terms of numbers and words you cannot do the job properly. Knowledge of that process only comes from the experience gained from doing the job and being around the production process and cannot be taught from a manual. If the work becomes just a number crunching exercise without the understanding of what those numbers mean then the role is diminished and the employer is buying less skill not more because of the exclusion of “non-qualified” applicants. If there is no presumption on the part of the employer that the Production Accountant understands how the process works then you might as well do without the accountant entirely and save on some cost as the value added apart from just “adding up” is negligible.
There is an element of “occupational capture” by organisations providing financial training that does not necessarily add to the skills of those who do the work but excludes from those occupations anyone who hasn’t received the “correct” training provided by those organisations.
The ICAEW itself in its ‘Directors’ Briefing’ on ‘Human Resources Management’ states in line one that “Discrimination on any other grounds other than an employees’ ability to do the job is illegal.” But the absence of a qualification however worthy and arduous should not be seen as an absolute sign that an employee does not have the ability to do a job. Whilst it is possible to discriminate on the grounds that there is “an occupational requirement”, and I suspect that many who do discriminate on educational grounds, especially in financial occupations, see this as the legitimate reason behind the requirement for a formal accountancy qualification, this requirement has to be “a genuine and crucial requirement” and “the application of the requirement must be a ‘good proportionate means of achieving a legitimate aim’.” In many recruitment specifications I think these criteria have not been met and that in numerous instances the employer does not have a full understanding of what skills the qualification imparts that are applicable to the role and therefore cannot apply the test criteria properly.
In short exclusion from occupations solely on the grounds of educational qualifications is in most instances illegal and acts solely as a lazy means of filtering applicants.
I have no issue with accountancy firms whose staff or partners are all members of a recognised accountancy body and who trade exclusively on the basis that this is the case as part of their USP although they are probably missing out on some good people by applying that criteria. In this case the firm is an accountancy firm and trading as such. Where it does become an issue is where there is occupational “mission creep” such that all finance jobs in any industry are seen to need membership of these organisations irrespective of whether the training provided is appropriate and exhaustive.
Of course the organisations that do benefit from the capture of occupations requiring “professionally recognised” qualifications are the professional bodies and education providers tasked with ensuring that a key sector of the business world are wholly members of and trained by them. That gives rise to a whole new question on competition, diversity and homogeneity of skills but we will save that for another day.