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Concerning leading UK academician, Sandra Fredman, this paper will be arguing the extent to which the Equality Act 2010 permits positive measures to promote substantive equality in the UK. It will be addressed from two perspectives; Does positive action allow substantive equality to be fully promoted or Do the arguments against Reverse discrimination stop it from being fully promoted.
A much more extensive definition of positive action could thus include all measures that seek to use positive steps to amend existing social practices to eliminate patterns of group exclusion and disadvantage. Within this wide definition, Christopher McCrudden has identified five basic categories in defining positive action, he starts with:
- Eradicating Discrimination -comprises of positive measures to eradicate discrimination, which involve organizations taking active steps to identify and put an end to any discriminatory policies. Under s149 of the Equality Act 2010 Public Service Duty must eliminate discrimination.
- Purposefully Inclusive Policies – Involves the use of policies and practices, that do not give preferential treatment to disadvantaged groups based on their gender, ethnicity, or other distinctive characteristics, but instead use general criteria as a basis for providing special assistance.
- Outreach this involves the use of outreach programs. These are techniques implemented by private or public bodies to attract more applications for employment, promotion, or entry into training or educational courses at universities for example, from marginalized groups. This could include the use of targeted advertising, and the establishment of special links with community groups, schools, and ethnic minority organisations such as BAME and WCAN. As well as careful presentation by the body reaching out to disadvantaged groups (to bring awareness and) to ensure that it is seen as open to diversity and applications from individuals from disadvantaged groups.
- Preferential treatment giving preferential treatment to individuals who come from disadvantaged groups such as at the workplace someones gender, ethnic background, disability, or any other personal characteristic that links them to a disadvantaged group may be considered in recruitment and promotion decisions. For example, a company may decide that it does not have enough women as senior executives: as a result, it may decide that the gender of a person might well be taken into consideration when interviewing the candidates, and if two or more candidates are more or less equally qualified for the post in question, then a female candidate may be given preference. This is known as applying preferential treatment as a tie-break .
- Redefining merit assessing and redefining the criteria used by employers to employ an employee (or by educational institutions to select students) to ensure greater participation by disadvantaged groups. For example: how an employer defines the desired qualifications for a job will often exclude many potential applicants from under-represented positions
Positive action within the Equality Act 2010.
Positive action and substantive equality
The Equality Act 2010 incorporates positive measures to promote substantive equality. Substantive equality may be usefully further subdivided between actions seeking ‘ equality of opportunity ‘ and measures designed to ensure ‘ equality of result, ‘ although this division is more pronounced in theory than in practice.165
The ECJ has also played an important role in the development of the principle of equality and, in particular, in shaping the form of substantive equality permitted under European law, which has now been incorporated into UK law as a result of the 2010 Equality Act. In the Kalanke decision, the Court made a clear distinction between equality of opportunity and equality of outcome.216 On the other hand, though, Marschall arguably allowed equality of results, subject to the inclusion of a savings clause,217 marking a degree of movement towards this form of substantive equality.218 Although the savings clause changed the outcome of the choice between two candidates on some occasions, the outcome of the decision was effectively predetermined in favor of the equally qualified female candidate when it did not come into effect.219 The Court stated its acceptance of substantive equality that encompasses measures that effectively achieve equality of results in Badeck.220 In Badeck, the ECJ approved plans that included binding targets to increase the proportion of women in sectors in which they were underrepresented so that more than half of the positions that arose during the two-year duration of each plan were designated for women, except where there was a ‘ genuine occupational qualification ‘existed or it was ‘ convincingly demonstrated that there are not enough women with the necessary qualifications available, ‘ in which case a smaller proportion of posts could be designated.221In applying the test set out in Marschall, the ECJ only required that there was no automatic and unconditional priority given to women when there were two equally qualified individuals and that the candidates had an individual and objective assessment.222 A substantive understanding of equality is incorporated into the Equality Act 2010.
Positive Action in the UK (Equality Act 2010)
Positive action allows substantive equality to be promoted in society as its main focus is removing barriers and redressing past disadvantages suffered by disadvantaged groups, one way in which it attempts to remedy past disadvantages suffered by underrepresented groups is through the current legal framework, the Equality Act 2010. The current legal framework for positive action in the UK is governed by domestic law, against a background of European laws, conventions, and treaties, as well as policies and initiatives that fall short of having strict legal effect. The broad range of sources of positive action, together with the judicial interpretation of its boundaries, has led to relatively unclear limitations for this area of law.
Section 104-106 of the Equality Act 2010 targets political representation mainly. It focuses on a selection of candidates – and allows registered political parties to make arrangements in the way in which they select candidates to address the under-representation of people with particular protected characteristics. S104(7) informs us that single-sex shortlists are permissible, however, a shortlist that is comprised only of another type of protected characteristics is not permissible. Furthermore, Hepple highlights that positive action is allowed where it is a proportionate means of achieving a relevant aim; as a tie-break in recruitment and promotion, and; in the selection of candidates by political parties for public elections.
Section 158 happens to be much broader, covering health, education, employment, and more. Its built on the old provision in SDA and RRA, in which there was a very limited provision allowing positive action in the employment context. It now extends to further characteristics than sex and race. Similar to s104 it is permissible. S158 applies when an employer thinks persons within that protected characteristics are disadvantaged and that they have suffered a disadvantage and that disadvantage is linked to their protected characteristics or it could also be that their participation is proportionally low. Lastly, persons from those protected characteristics have needs that are different from the needs of persons who dont share that protected characteristic. If this scenario arises, then the employer can take positive measures, which are of a proportionate means of achieving the aim of overcoming the disadvantage or enabling or encouraging participation to persons who share protected characteristics to take part in that activity. A useful example would be the proactive measure the West Midlands Fire Service took, by advertising and targeting women and ethnic minorities, through mediums like social media, to take part in fire fighting. Thereby promoting diversity and social inclusion within the service.
S159 mirrors the European case law and it is only relevant to recruitment and promotion. It reflects the limit of positive action permitted by European law so the principles established in cases like Marschall and Abrahamsson we see this reflected in s159. The requirement that the candidate preferred must be as qualified as the one who is not being preferred.
In addition to that, s159 in line with EU jurisprudence does not allow employers to have a policy or practice of automatically treating people with a specific protected characteristic more favorably – also known as automatic preference. There must be a scope for an objective assessment of the individual. A recent case law was established in February this year concerning this matter. A young white male was denied his dream job in the police force. Even though he was qualified for the job he didnt get it because the police force wanted to recruit more ethnic minorities, females, and individuals within the LGBT community( Matthew did not fit into any of these characteristics) to satisfy one of the aims of positive action, diversity and increased participation by underrepresented groups within the police force. However, this was at the expense of Matthew Furlongs career; automatically treating those with the specific protected characteristics more favorably than him and failing to follow the principle of merit.
The Equality Act 2010 requires that public authorities have due regard to the need to promote equal opportunities, including having due regard to the need to encourage the participation of persons with relevant protected characteristics in public life or in any other activity in which participation by such persons is disproportionately underrepresented. This requirement broadens the existing positive obligation for public authorities to promote racial and gender equality. Equivalent to the legal authority on the employer to take positive action. The Equality Act 2010 enables public authorities to take action to remove or minimize disadvantages that occur as a result of shared protected characteristics; to meet the different needs of persons with protected characteristics as a result of those characteristics; and to encourage persons who share the relevant protected characteristics to take part in such activities in which there are underrepresented.
However I support Sandra Fredman’s argument that they remain invisible barriers in society in places such as the workplace and education, certain groups are still underrepresented in activities; regardless of the Equality Act 2010 attempting to remedy this. Furthermore, even though the aim of positive action is removing barriers and redressing past disadvantages that is a good start that is not enough, one needs to look deeper and address the structural and institutional causes, instead of leaving them till the later stage and using positive action to attempt to remove the problem. She also argued that the use of positive action is legitimate and does not involve discrimination at all. She suggests that such types of positive action may be necessary to break down structural forms of indirect discrimination and can therefore be conceptualized as a remedy for discrimination. She juxtaposes this ‘ substantial equality ‘ perspective with approaches that emphasize ‘ formal equality, ‘ i.e. sameness of treatment and rejection of distinctions based on suspect grounds. She argues that if too much reliance is placed upon securing formal equality for all, this will mean that combating discrimination will all too often become a matter of proving formal guarantees of equal treatment, rather than assisting and empowering disadvantaged groups.
Alternatively, it ought to be acknowledged that Reverse discrimination stops positive action from being fully promoted as positive action policies such as the Equality Act 2010 are inconsistent with the principle of merit (the idea of attaining what you earn) and they penalize innocent people such as Matthew Furlong because of past crimes in which their ancestors committed; known as reverse discrimination.
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