University of Chester Forum for Research into Equality and Diversity

University of ChesterForum for Research into Equality and Diversity Launch Event The Limits of Positive Action Muriel Robison

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Challenges • To women only shortlists • Jepson and Dyas Elliot v The Labour Party 1998 IRLR 116 Employment Tribunal • Alternative selection methods • Twinning and zipping • Used in devolved elections • 54% Welsh AMs and 50% Scottish MSPs • Despite uncertain status under EU law

Positive action for political parties • Sex Discrimination (Election Candidates) Act 2002 • With sunset clause by 2015 • Provisions replicated in Equality Act s104 • Now got until 2030 • Beyond sex • To reduce inequality in numbers • But no shortlists • And must be proportionate

Positive action in recruitment and promotion: the tie break • Employers can take account of protected characteristics where: • One candidate is “as qualified as” the other • Employer “reasonably thinks” the protected group is under-represented • Proportionate means of achieving the aim of overcoming the disadvantage • And it is not an automatic policy • So each case considered on own merits

What does it mean? reasonably thinks • “Requires the application of logic and rational principles but does not require proof based on undisputable statistical evidence” as qualified as • “not a matter only of academic qualification, but rather a judgment based on criteria.... to establish who is best for the job...including matters such as suitability competence and professional performance”

Positive action in general: employment and beyond • Where as a person “reasonably thinks” • That persons sharing the protected characteristic • suffer a disadvantage connected to it, or • Have needs that are different from the needs of persons not sharing it, or • Have a disproportionately low participation rate in the activity

When are special measures permitted • Special measures for protected groups • Which are a proportionate means of meeting the aim of • Enabling or encouraging persons to overcome or minimise disadvantage • Meeting differing needs • Enabling or encouraging persons to participate in an activity

The limits of positive action • The intention is to permit all action which is permitted by European law • “must remain within the limits of what is appropriate and necessary in order to achieve the aim in view” • But despite intention not to deter those contemplating positive action • risk of challenge outweighs advantage • No obligation to consider initiatives

Except?.....Public sector duty • Having due regard to the need to: • Remove or minimise disadvantages • Take steps to meet differing needs • Encourage participation where it is disproportionately low • Compliance with the duty may involve treating some more favourably • “due regard” contested but means means something more than voluntary

Suggestions for research projects? • Important to understand the extent to which provisions are being used, or not • examples of the “tie break” provisions being used? • if so are they making a difference • How could the provisions be improved to secure full equality in practice? • Incentives? Sanctions?

University of Chester Forum for Research into Equality and Diversity