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  • The right to a job

    Posted by Helen on July 2nd, 2008 (All posts by )

    There has been a certain amount of fuss recently over the case of the sued hairdresser. The story is readily available in the MSM so I shall sum it up very quickly indeed. Ms Sarah Desrosiers runs a hairdressing salon in King’s Cross, North London, which specializes, as she puts it, in “funky urban hairstyles”. I am not sure I know what it means but whatever it is the business has been successful. As it happens I know two young women whose hair is always beautifully cut, who had followed Ms Desrosiers when she left the big salon she had worked for and set up her own business.

    In other words, we are talking about a talented, hard-working, entrepreneurial young woman of the kind this country needs many more of. Whether we are going to have them after this particular episode remains questionable.

    Ms Desrosiers’s problems started when she interviewed another young woman by the name of Bushra Noah for the position of a junior against her initial decision as the latter was not local. Ms Noah, it seems, pleaded for an interview and, according to Ms Desrosiers, arrived and behaved as if she had already got the job. In the circumstances, it is legitimate to ask whether she had been put up to this by some organization or other.

    The main problem with Ms Noah (there seem to have been several) was her refusal to remove her headscarf or allow even a wisp of hair to show from under it. (Actually, that is a nonsensical attitude anyway, as even the most devout Muslim women are allowed to take their scarves off in the presence of women merely.) Ms Desrosiers considers, with some justification, that a hairdresser should show her own hair to the customers and be part of the hairdressing scene. The fact that this might sometimes put off potential customers is a calculated risk the hairdresser takes.

    Ms Noah, who had already been rejected by 25 other hairdressing salons, sued Wedge, Ms Desrosiers’s business for discrimination and hurt feelings. The story hit the media and support for Ms Desrosiers was widespread within and outside hairdressing circles. To this day if one reads comments on some of the very flip and silly articles on the subject one can see where popular sympathies lie.

    Eventually, the tribunal decided that there was no direct discrimination, no word having passed about religion, race or ethnicity, merely about the headgear but there was indirect discrimination and hurt feelings. Ms Noah has been awarded £4,000 on that basis. Apparently, being rejected for a job is a sign of indirect discrimination and hurt feelings. I wonder whether I should have sued some of the people that did not employ me in the past for whatever reason they had.

    Some of the reactions in the blogosphere have been predictable in concentration on giving in to Islamist pressure and multi-cultidom. But there are wider issues at stake here.

    First of all, there is the question of what constitutes indirect discrimination, a concept defined in Directive 2000/78/EC and thus being outside the ability of Parliament to do anything about as being:

    (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
     
    (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
     
    (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

    According to the article in the Daily Mail, for which I hope Ms Desrosiers received enough money to pay off Ms Noah:

    But with regard to the issue of indirect discrimination, they found that Sarah had pursued a ‘legitimate aim – that aim being to promote the image of the business’.
     
    However, the burden of proof was on Sarah to prove that her means of achieving that legitimate aim was proportionate.
     
    She was not able to prove her contention that employing someone with a headscarf would have the negative impact on her business’s stylistic integrity that she feared.

    In other words, Ms Desrosiers had shown no discrimination based on anything that was irrelevant to her business but the tribunal, made up of people who have, presumably, never had much to do with running anything to do with real enterprise, arrogated itself the right to decide whether “her means of achieving that legitimate aim was proportionate”. The person who runs a business, who has taken all the risks and has put in all the work is not, according to this, qualified to judge such matters for herself without the wise guidance of the state’s myridons. The fact that if she makes the wrong decision Ms Desrosiers will be punished by losing clients and, thus, profits is not an argument these people understand.

    Secondly, there is the issue of being entitled to some job you happen to covet. Ms Noah’s “strongest” argument was that she had always wanted to be a hairdresser and was being prevented from fulfilling her overwhelming ambition. Why anyone who thinks women should not show their hair should have that ambition is beyond me. Furthermore, I understand that she is now studying some other trade so the ambition has not proved to be overwhelming enough.

    The question is does having that ambition entitles you to a job, whether you are qualified or suitable. The message to many of our young people is that it does. That is why we get all that whingeing about people wanting to be dancers but not getting any jobs from girls who have clearly never done any training.

    There is legal support for this point of view on its way in, yes, you guessed it, the Constitutional Reform Lisbon Treaty. Article 15 of the Charter of Fundamental Rights (and most lawyers think that Britain’s opt-out or opt-in or whatever you want to call it is not worth the paper it is written on) is entitled: “Freedom to choose occupation and the right to engage in work”. Sounds fine. Why should one not be free to choose an occupation or engage in work?

    However, the first item in that Article reads:

    Everyone has the right to engage in work and pursue a freely chosen or accepted occupation.

    This goes some way beyond nobody, particularly the state, having the right to prevent you from doing the work you want to do. This gives everyone the right to get the job they think is right for them or have always dreamt of having. I predict many more cases of the kind Bushra Noah engaged in and even fewer small businesses expanding.

    Cross-posted from EUReferendum

     

    13 Responses to “The right to a job”

    1. Shannon Love Says:

      I think the attitude here springs from the Marxist concept that wealth and businesses evolve out of impersonal natural forces and that therefore, everyone has the right to the benefits, jobs, goods, money etc as the person that happens to run the business. In the Marxist view, owing a business is just a matter of luck anyway. You won a lottery. A just state corrects these random imbalances by allowing people who lost the lottery to access the benefits of the business.

      Marxism infects all leftist thought, especially in Europe. They have only a vague notion that all work and production choices are not completely arbitrary. If everybody in society wants to be a hairdresser then they all have a right to that job and somehow the natural forces will provide food, clothing and shelter for a highly stylish civilization.

      I think we are seeing the final evolution of the postmodernist meme which holds that all forms of human organization and action are ultimately arbitrary. We can simply choose any social or economic structure we collectively wish to and our wishing will make it so.

    2. Ginny Says:

      This is depressing. Very depressing. (This is a rant.)

      In a small business, the owner can feel (at least I did) like every day was a challenge to work hard enough and smart enough to cover the bills and make sure the employees were paid. If there was enough left over to educate my kids, well, great. An employee becomes – to any reasonable business owner – a responsibility. They are respected and paid and kept on if at all possible (the company losing money, the incompetence, the dishonesty of a worker – sure that happens; but owners do not dream of passing out pink slips).

      One of the recompenses was that it was mine – my employees, my customers, my bills. I chose the employees; I may have made some bad choices, but they were mine. Developing this level of intimacy with someone I had been coerced to hire would make me bitter. Collegiality has gone out as an explicit criteria, but I can’t imagine a business setting in which that isn’t (and shouldn’t be) the concern of anyone hiring or firing.

      This is so far beyond that. I’m pretty casual about my looks and prefer a hairdresser that accepts walk-ins and doesn’t have much of a line and is cheap; still and all, I look at the cut of a hairdresser before she starts on my hair.

      And then, well, it’s her dream to work! I can’t even begin to contemplate the idiocy of this. It would be my dream to work in a state job where I could read a book all day, retire with full pay at 40, and have benefits the rest of my life. It would not be my dream to live in a country where such a dream was likely to come true, since the rest of us wouldn’t retire at 70.

      Hard America is experienced America. We need to get our kids working – at service jobs, under a boss, training others, trying to make a profit, etc. Only a fool or a narcissist who had any experience in the private sector could have come up with such a judgment.

    3. sol vason Says:

      She was utterly stupid to tell the interviewee she was not going to hire her. She was even more stupid for giving a reason for not hiring. Honesty always hurts. This makes honesty actionable.

      She should have told the interviewee that she planned to continue interviewing people for several months. She should have thanked the interviewee for applying and should have asked for references from customers and employers together with a portfolio of her work. Artists always have a portfolio.

      Then she should have kept interviewing and hired the person with the references and portfolio she liked the best. This is how you bring in a second chair who already has eager customers, has artistry that’s both proven and compatible, and makes you money.

    4. Helen Says:

      Read the story, Sol Vason. There are no portfolios for hairdressing juniors who wash customers’ hair and hand scissors and brushes to the stylists but otherwise that is exactly what Sarah Descroisiers did. Eventually she had to admit that she was not going to hire the girl. She was also entitled to asking whether the girl would consider removing her scarf. I think you are missing the point of the story.

    5. Jonathan Says:

      In the course of preparing for her trial, Sarah estimates she has lost £40,000 of her salon’s annual income.

      The full costs of these cases never appear in official records.

    6. renminbi Says:

      The record of the regimes based on electoral politics has been one of progressive erosion of ones right to run ones affairs as one sees fit.A big improvement would be restricting the franchise to those who are working in the private sector and paying taxes to support the parasites. I am aware that this is not on right now,but people will see things differently when the lights go out.

      The idea that our representatives represent us is a legal fiction in any case.They are,in fact our agents,and in any such relationship thereis ample scope for abuse.Public juries of taxpayers should be able to nullify the harm done by our representatives via impoundment and nullification of laws.What chance would such decision have if it were reviewed by real human beings?

    7. Anonymous Says:

      Helen,
      If Noah has no portfolio she is not an artist and then there is good reason not to hire her. If you read the Daily Mail story, Desrosiers originally was looking for a second chair – not a washer woman. If the Noah does not have a portfolio, she can take pictures with her cell phone of her loyal customers. If she has no loyal customers, then she is out of the running.

      On the other hand if Noah fakes the pix and the recommendations and gets the second chair and fails to produce, she can be terminated for lying.

      On the third hand if Noah has good pix and good recs and loyal clients, both Noah and Desrosiers win. After all Moslem women need hair cuts too. In London, Moslem women are a major market and who better to cut them than a devout, heavily veiled Moslem female?

      Desrosiers forced the judgement against her by making wearing a headscarf the sole reason for failing to hire. If she had claimed artistic differences or simple incompatibility in addition to the headscarf, she would have won. There is no possible way any court can establish a precedent that allows modest religious dress, by itself, as cause for termination or refusal to employ.

    8. Tatyana Says:

      Sol (if that was you as anon in the comment before mine): you’re trying to suggest variety of legitimate reasons for an owner explaining her decision. But the reason she gave was perfectly legitimate, too. More: she’s entitled to her own reasons. She’s even entitled not to have a legitimate reason, only a hint of intuition; she’d be right even if her reason for not hiring an applicant was such insignificant traits as personal odor, nervous tic, mannerisms or lack of fashion sense – whatever. She’s entitled to her own personal idee fix on a subject how her employee should look and behave: she’s a business owner. A master of her domain.
      Have you ever watched that show about a chef in a restaurant, yelling like crazy at his kitchen help? He’s entitled: he’s the Chef. His aim is customer satisfaction and reputation of his business; the way he achieves it – his business. Employees have a choice; they feel the minuses of working in such environment outweigh the pluses – there is always a door. This arrangement is the essence of capitalism, the core of society.

      Decisions like that destroy that core.

    9. Helen Says:

      Sol or Anonymous (I suspect Tatyna is right in that as in the rest of her comment),

      You underestimate or refuse to understand the importance of that EU Directive and the concept of “indirect discrimination”. It doesn’t matter what reasons Sarah gave or not gave (actually, as Tatyana says, she should not have to give any reasons at all) for not employing Noah. (Btw washerwoman means something else not a junior in a hairdressing salon.) Under that legislation Noah could still claim indirect discrimination as she had no evidence of the direct kind, though she tried it on, and the burden of proof is on the defendant. That, in itself, is wrong.

      Furthermore, it means that members of a tribunal decide whether the owner of a business was right or wrong in certain decisions that affected her business. The only people who should be deciding that are the customers. I don’t understand why you seem to think that this is an acceptable state of affairs.

    10. sol vason Says:

      This Desrosiers v Noah affair has too many similarities to the Mark Steyn affair, and the various CAIR lawsuits. I imagine that Noah herself was allowed no choice in her actions and the goal of her handlers was not employment but a form of legal terrorism.

      I thoroughly agree that Desrosiers has a natural right to operate her business as she sees fit and that her employees serve at her pleasure. I remind you that governments over regulate businesses and that these regulations always have bad consequences that the naive assume are unintended.

      A small businessman does not have the resources to fight legal battles even when his/her cause is on the side of God and his Angels. Nor can he look to the police for protection; the police only show up after the crime and make things worse by getting everything dirty with finger print powder. They never find the perpetrators and they usually give insurance companies excuses for not paying claims.

      On the other hand, if you choose a good location, 99% of the people who come through the door have good intentions. Only the small businessman can protect him/herself from the last 1%. No one else is going to do it for him/her. What I have suggested are some simple self-defense tactics.

    11. Helen Says:

      I think we basically agree, Sol, but the trouble is that nobody really knows what “indirect discrimination” and legitimate business interests mean. Whatever the tribunal decides, it appears.

      Furthermore, I should like to point out the fact that this is an EU Directive. Thus it was not even put into law by our elected legislators much as I agree with you on that subject Renminbi. Well, it was but only because they have to do so. EU legislation cannot be thrown out by Parliament.

    12. sol vason Says:

      Here is a thought I have not heard expressed. The EU is a miracle. It has done what the greatest men in European History failed to do. Roll models like Justinian, Charlesmagne (Karl der Grosse), Barbarosa, Henry II, Elizabeth, Gustavus Adolphus, Louis XIV, Catherine, Napoleon and Hitler, who tried and failed to rebuild, reunite and enlarge the empire of Rome as it was under the Caesars.

      And now suddenly a bunch of faceless bureaucrats have accomplished what Europe’s greatest heroes/villains could not, and they did it without sacking a single town, without selling a single nation into slavery, without rape and pillage, without great battles with monster butcher bills. Nations who historically have always fought fearlessly and ferociously for their freedom have begged to be admitted to the EU.

      If the EU should fail, then Europe is guaranteed another 2000 years of horror as the next bunch of national heroes/villains use great battles, rape, pillage, sacked cities, and every atrocity to rebuild and enlarge the EU.

      Perhaps the memories of the German Catastrophe will be sufficient and these nations will find the balance between supra-national EU level authority, national authority and local authority – what our Founding Fathers called Federalism and States Rights – that will build a lasting, peaceful, prosperous, union of people who have life, liberty and need no one’s permission to pursue happiness.

      The issue you raise, “which level of government should have the final say in laws governing the hiring of juniors by very small business?” needs immediate resolution. Unfortunately the people who run the EU have only the laws and policies of previous empires to use as building blocks, and the examples of the great heroes/villains as roll models. We live in interesting times.

    13. Helen Says:

      An interesting view of European history and of the EU. Not one shared by people who have studied either. I take it you mean role model not roll model. The latter conjures up very odd visions.