University of Chester Forum for Research into Equality and Diversity

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

2. Remember this?

3. 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

4. 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

5. 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

6. 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”

7. 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

8. 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

9. 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

10. 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

12. 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?