The Government has set out its proposals for the new Equality Bill to be published in the next parliamentary session. The main thrust of the Bill is to consolidate current discrimination legislation into one Act. It will also include provisions for the creation of a single public sector equality duty; extend age discrimination laws to cover those providing goods, facilities and services; widen the scope of positive action; provide for greater pay transparency; and consolidate many existing discrimination laws.
The only really controversial proposal is extending positive action so that employers will be able to take into account under-representation of a particular protected group when selecting for appointment or promotion between two equally qualified candidates. However, quota systems or having an automatic policy of favouring those from under-represented groups will remain unlawful. The new positive action measures will apply to all grounds protected by discrimination law except for disability where it is felt unnecessary.
Is this positive action or positive discrimination? Positive action is already permitted in targeting training or encouraging job applicants from under-represented groups. However, this is not the same as positive discrimination in the actual recruitment of staff. The Government is suggesting that where, for example, a man and a woman candidate are equally qualified for a job, an employer would be entitled to prefer the candidate whose sex is underrepresented at that level in that workplace.
However, UK law must reflect EU law. EU law allows this degree of positive action as long as it is carefully drafted to avoid tipping over into positive discrimination. The difficult question in these cases will be: are the candidates genuinely equal and is the positive action provision tightly drawn enough? At the very least, the Government is going to give the legislation draftsman a real headache if she's going to avoid the Government facing more legal challenges down the line.
By coincidence, the EAT has recently touched on this issue in a complex sex discrimination case involving a post of medical director in the Ministry Of Defence. The unsuccessful female candidate argued that the Navy could have employed an element of positive action as the higher ranks of the Royal Naval Reserve are male-dominated. She suggested the board should have used the Navy's Equal Opportunities Action Plan to choose her in the tie-break situation.
The EAT rejected this suggestion as it is not discriminating against a woman to fail to treat her more favourably than a man. Not using positive action in a tie-break situation is not of itself discriminatory. The EAT could simply have dismissed her claim as use of gender as a tie-break is not currently permitted under the discrimination legislation without further comment on this point. They in fact found against her on other grounds so it is not the sort of detailed analysis which will be needed in this area once the new measures are in place.
The Government has said that these measures will 'remain strictly voluntary'. It does not see a decision not to use this positive action measure for any particular application process as being discriminatory. It is not at all clear though at the moment that such a decision would be beyond challenge. In the future, we may well see discrimination claims incorporating non-utilisation of positive action arguments.