For instance, in an article in the Telegraph on 2 December, David Green, director of thinktank Civitas, is quoted as saying that the move imposed "illiberal requirements on employers" and that "the Government is now to require employers to discriminate on grounds of ‘group identity’, not personal qualities. If two candidates of equal merit apply for a job, then it should go the candidate from the ‘under-represented’ group." Even more factually inaccurate was the Daily Express headline from 26 June 2008, ‘White men face jobs ban as new law favours ethnic minorities and women’.
The Equality Act 2010 is primarily intended to consolidate and simplify existing discrimination legislation. So it repeals the disparate group of acts and regulations conferring discrimination protection in the employment field (as well as other areas) and unifies them into a group of ‘protected characteristics’, including race, sex, sexual orientation, age, disability and so on.
The first point to bear in mind is that positive discrimination, per se, has never been, and is not now, lawful under UK employment law (except perhaps in the field of disability discrimination, where there can be positive obligations to make reasonable adjustments to offset a disadvantage suffered by a disabled candidate or employee). So it is not lawful to select a candidate for recruitment or an employee for promotion, simply because, for example, they are from a minority ethnic background, or a woman, or older (or younger) than other candidates. However, even before the Equality Act came into force, positive ‘action’ was permitted, but only to the extent that it was lawful to provide support (such as additional training) to under-represented groups and to encourage the take-up of jobs in a particular area.
The key change introduced by the act has been the introduction of a ‘tie-breaker’ provision, which essentially provides that if two candidates for promotion or recruitment are equally qualified for a position, the potential employer may select the candidate who has a protecting characteristic, so long as the reason for doing so is to overcome a disadvantage connected to that protected characteristic or to reduce under-representation of people with that characteristic (and to do so is ‘a proportionate means of achieving a legitimate aim’).
The main reason that Green’s comments above are inaccurate is that no obligation is imposed on employers to select an equally qualified person with a protected characteristic over someone without that characteristic. Such a decision would be entirely at the employer’s discretion. However, that being the case, it is hard to see how this new provision can be workable in practice. Given the difficulty of ever showing that two candidates are ‘equally qualified’ for a role, why would any employer expose themselves to the potential risk of a discrimination claim by (say) a white, male employee on the basis that he was in fact better qualified than (say) a black, female employee and that the employer has unlawfully discriminated against him on the grounds of his race and/or sex?
On 2 December 2010, the Coalition Government announced that these provisions would come into force in April 2011. It will be interesting to see the extent to which employers are willing to rely on them when making their recruitment and/or promotion decisions.
Bob Fahy is an associate in the employment team at solicitors Matthew Arnold & Baldwin