University of ChesterForum for Research into Equality and Diversity

Launch Event

The Limits of Positive Action

Muriel Robison

Remember this?

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?