You may recall an image of Tony Blair surrounded by women in colourful suits, the so-called 'Blair’s Babes', following the 1997 general election. However objectionable the label, this represented a success story for the positive action initiatives introduced by the labour party to secure a parliament more reflective of the people which it represents. Women-only shortlists were highly controversial at the time, and indeed were subject to a successful legal challenge [Jepson and Dyas-Elliot v The Labour Party 1996 IRLR 116 ET]. Rather than appeal, the labour party, by then in Government, used its trump card and passed the Sex Discrimination (Election Candidates) Act 2002. This introduced an exception in the Sex Discrimination Act which allowed political parties to make arrangements for the selection of candidates to reduce inequality in the numbers of men and women elected. It included the optimistic assumption that equality would be achieved by the end of 2015 by the addition of a sunset clause.
This was high profile recognition at the very top of the establishment of the need for the law in some instances to include positive measures to address disadvantages and under-representation which are explained by historical developments and institutional discrimination.
Thereafter, other political parties introduced alternative methods to address the gender imbalance on their benches, for example twinning (constituencies paired and with one man and one woman as candidates) and zipping (men and women alternate on the lists of candidates). Positive action measures like these ensured that 37% of the first MSPs were women, and 50% of AMs in the National Assembly for Wales in the 2003 election [MacKay, F., Women’s Representation in Wales and Scotland, in Contemporary Wales 17, 140-161, 2004].
The Equality Act 2010
Since then the ratios have slipped and there has been no significant change in the numbers of women at Westminster [to 34% and 40% respectively, with Westminster still at 23%: see House of Commons Briefing for International Women’s Day 2015 SN2936]. So with expiry looming, the opportunity was taken to include equivalent provisions in the Equality Act 2010, with section 104 extending its scope. Political parties are now permitted to regulate the selection of candidates so long as this is a proportionate means of reducing inequality between elected candidates who share a protected characteristic and those who do not. While women only shortlists are still permitted (and there is no requirement to show that the use of single sex shortlists is proportionate), this does not apply to the other protected characteristics except to the extent of providing reserved places on shortlists for those with other protected characteristics such as race or disability. This provision will automatically repeal by the end of 2030 unless that date is extended.
The Equality Act 2010 presented a much greater opportunity to introduce positive action measures to tackle disadvantages and underrepresentation suffered by protected groups not only in political parties but also in employment, and in society generally. Although the Sex Discrimination Act and the Race Relations Act had permitted positive action since coming into force in the mid 1970s, the scope for action was very limited, and primarily in relation to employment and training.
There was a desire to extend the scope of permitted positive action as far as possible without endorsing positive discrimination (that is where a person from a protected group is automatically advantaged). Indeed according to the Explanatory Notes to the Equality Act [paras 517 and 521], the intention is to allow all positive action which is permitted by European law.
Recruitment and promotion
European law goes so far as to permit 'national measures which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men', without however giving unconditional and absolute priority to women. In Marschall v Land Nordrhein Westfalen [1998 IRLR 39], the CJEU recognised that men tended to be promoted more frequently than women and that this could be the result of prejudice and stereotyping. The Court memorably concluded that 'the mere fact that a male candidate and a female candidate are equally well qualified does not mean that they have the same chances'.
With a view to introducing such national measures, the Equality Bill included so-called “tie-break” provision. This was one of the most controversial draft clauses when the Bill was first published, being singled out for criticism by John Humphries on the Radio 4 Today programme in his interview with Harriet Harman [26/8/08]. Yet despite opposition from the Conservative benches during the passage of the Bill, these provisions were brought into force in April 2011, presumably because they are permissive but not prescriptive.
This provision allows account to be taken a candidate’s protected characteristic in recruitment or promotion in certain limited circumstances. The term ‘recruitment’ is defined widely to include offer of employment, making contract work available to a contract worker, offer a position as a partner in a firm, offer a take a person as an advocate’s devil, offer an appointment to a personal or a public office or offer a person a service for finding employment. A candidate for a position or a promoted post in a protected group can thus be favoured over another candidate if certain conditions are met.
The first condition is that the candidate is “as qualified as” another candidate to be recruited or promoted. During the passage of the Bill through Parliament the Conservatives sought to amend this wording to ‘equally qualified to’, but this would suggest the need for candidates to have the same qualifications and experience. The Explanatory Notes explain that “the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance” [para 526].
Second, the employer must “reasonably think” that the protected group is at a disadvantage or is under-represented. This is designed to ensure that those contemplating positive action are not deterred from doing so, since, according to Baroness Thornton [the House of Lords Official Report of 9 February 2010, col 692], it requires the application of logical and rational principles but not proof based on undisputable statistical evidence.
Further, the exercise will require to meet the aim of enabling or encouraging protected groups to overcome or minimise the disadvantage or participate in that activity, and the method chosen must be a proportionate means of achieving those aims.
Finally, in order to ensure compliance with European law that there should be no absolute or unconditional priority, the employer must not have a policy of automatically treating persons in the protected group more favourably in connection with recruitment or promotion, that is that each case must be considered on its merits.
The Explanatory Notes [para 526] give examples of a police service giving preferential treatment to a candidate from an under-represented ethnic minority background where other candidates not from that background were as qualified. This provision must then operate in the context of an objective selection process which assesses skills, qualifications and experience.
Positive action: the general provisions
Beyond political parties and recruitment or promotion, the general positive action provisions in the Equality Act seek to address disadvantage and under-representation among protected groups, not only in employment generally but also in relation to the provision of services and public functions. Measures which are targeted at the protected groups are permitted if they are a proportionate means of the aim of enabling or encouraging persons to overcome or minimise disadvantage; or meeting the different needs of the protected group; or enabling or encouraging persons in protected groups to participate in an activity.
Measures meeting one or more of these aims will be permitted if a person 'reasonably thinks' that those in protected groups suffer disadvantages connected to their protected characteristic, or have different needs or are under-represented. During the passage of the Bill, Conservative Peers attempted to amend this provision to require those relying on it to 'demonstrate' disadvantage, different needs or under-representation. But as with the recruitment exception, while reasons will require to be given, there is no need to carry out extensive research to support the view that positive action measures should be taken.
In assessing whether measures would be proportionate, the Explanatory Notes state that this will depend, among other things, on the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering [para 520]. The Explanatory Notes give the example of supplementary maths classes provided by a school exclusively for white male pupils who had been identified as underperforming at maths; and an local awareness campaign for lesbians run by an NHS Trust on the importance of cancer screening, having identified that lesbians are less likely to be aware that they are at risk of cervical cancer.
Despite drafting the legislation to encourage positive action and to avoid 'the chilling effect on the willingness of employers to use positive action measures' [Baroness Thornton, Hansard, 2010, Col 692], there are very few examples of such initiatives. One notable exception of the recent announcement by the Judicial Appointments Commission of England and Wales regarding their intention to use the 'equal merit provision' in recruitment exercises from 1 July 2014 in order to seek to ensure diversity within the judiciary.
Although there is little evidence suggesting uptake, still the need for further provision to encourage diversity is recognised by Government. Indeed, following the Smith Commission agreement, the draft clauses for a new Scotland Bill are to include the power for the Scottish Parliament to introduce gender quotas in respect of public bodies in Scotland [Scotland in the UK: An Enduring Settlement, January 2015, Cm 8990].
But positive action measures should not only seek to increase the diversity of our judges, politicians and company directors. As Professor Alison Wolf has observed recently in the Guardian, the focus on women on the front benches and in the boardroom is tending to ignore the armies of low-paid women doing traditional female tasks on whom the economy depends [The Guardian, Comment is Free, 22 January 2015]. They too, along with other disadvantaged protected groups, could benefit from positive action initiatives if only organisations would have the courage to utilise them.
So notwithstanding the Government’s apparent attempt to encourage the use of positive action measures to better address disadvantage and under-representation, there is little evidence of this aim being successful.
If you are interested in exploring the reasons why, despite the greater scope for action under the Equality Act 2010, positive action initiatives are so underutilised, you may wish to become involved in research which is being undertaken by the University of Chester to explore this phenomenon and consider what changes might make a difference.
The University of Chester is currently carrying out a small-scale scoping survey to determine the impact and perceptions of employers in England, Scotland and Wales towards the positive action provisions in the Equality Act 2010. We are looking for participants who are willing to respond to an initial survey which can be accessed at www.chester.ac.uk/fred/research/positive-action. Any feedback is welcome and interested parties can contact the researchers directly at email@example.com or FRED@chester.ac.uk.
The opinions expressed in this article are the author's own and do not necessarily reflect the view of the Commission.
Muriel Robison, part-time employment judge and lecturer on employment and discrimination at the University of Glasgow
Last updated: 10 Oct 2016