Positive Action under the Equality Act 2010 and the implications of the Public Sector Equality Duty for positive action in the UK
Abstract
Positive Action under the Equality Act 2010 and the implications of the Public Sector Equality Duty for positive action in the UKCitation
Davies, C. (2015). Positive Action under the Equality Act 2010 and the implications of the Public Sector Equality Duty for positive action in the UK. Green’s Employment Law Bulletin, TolleyPublisher
W. GreenJournal
Green's Employment Law BulletinType
ArticleLanguage
enISSN
1352-2159Collections
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Bridging the gap: an exploration of the use and impact of positive action in the UKDespite laws in Britain permitting limited positive action initiatives to combat disadvantage faced by minority groups in employment since the mid-1970s, the subject has notoriously been a neglected and highly controversial area in the UK. Notwithstanding the potential provided by sections 158 and 159 of the Equality Act 2010, it still appears that organisations prefer to steer clear of this opportunity to address disadvantage suffered by protected groups. Whilst there is a body of work considering the theoretical importance of positive action in the UK, there is a lack of empirical exploration of the practical implications of these provisions. This paper will provide a brief overview of the theoretical context and current positive action legislative provisions within the UK. In light of this context, the early findings of a small-scale qualitative study carried out by the authors will be discussed looking at the experiences of a purposive sample of public and private employers in relation to the positive action provisions of the Equality Act 2010. Early research findings suggest that whilst there was a clear willingness and openness by employers to use of outreach measures in order to redress disadvantage, there was evident wariness regarding a move towards preferential treatment as expounded by section 159. Whilst respondents appeared to appreciate the business case for and utility of the positive action measures under section 158, there was far less enthusiasm for more direct preferential treatment, with many respondents raising serious concerns regarding this. These concerns often reflected a highly sensitive risk-based approach towards any action that could expose their organisation to the possibility of “reverse discrimination”.
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Shifting the starting blocks: an exploration of the impact of positive action in the UKDespite laws in Britain permitting limited positive action initiatives to combat disadvantage faced by minority groups in employment since the mid-1970s, the subject has notoriously been a neglected and highly controversial area in the UK. In 2010, the existing positive action provisions for the individual protected characteristics were to some extent transposed into the Equality Act 2010 (section 158 Equality Act 2010). Whilst the previous legislation had been based on an accepted ‘equality of opportunity’ approach, the new section 158 could be seen as a broadening out of positive action moving towards an ‘equality of results’ paradigm (Burrows & Robison, 2006). More recently, with the implementation of section 159 of the Equality Act 2010 in 2011, positive action in the UK has moved into new territory permitting organisations to utilise preferential treatment (using McCrudden’s taxonomy of positive action) in the form of ‘tie-break’ provision. Section 159 introduced a specific exemption for positive action in relation to recruitment and promotion. Where a particular protected group are at a disadvantage or are under-represented and there are two candidates ‘as qualified as’ each other, the employer is permitted to take a protected characteristic into consideration. Although sections 158 and 159 are voluntary provisions, it may be that the Public Sector Equality Duty could arguably require public bodies at least to have due regard to positive action initiatives pursuant to the section 149 obligation. Notwithstanding the potential provided by sections 158 and 159 of the Equality Act 2010, it still appears that organizations prefer to steer clear of this opportunity to address disadvantage suffered by protected groups. Nevertheless, the recent announcement of the Judicial Appointments Commission regarding their intention to use the ‘equal merit provision’ in recruitment exercises from 1 July 2014 in order to seek to ensure diversity within the judiciary is notable (Judicial Appointments Commission, 2014; Malleson, 2009). Equally, work carried out for ASLEF (Robison, 2012) has indicated that unions in male dominated sectors are seeking to encourage employers to engage with positive action initiatives. Whilst there is a body of work considering the theoretical importance of positive action in the UK (see inter alia Barmes, 2011; Burrows & Robison, 2006; Johns et al, 2014; McCrudden 1986; Noon, 2010), there is a lack of empirical exploration of the practical implications of these provisions. Qualitative study to determine the utility of the positive action provisions is considered both timely and necessary as we approach the fifth anniversary of the Equality Act 2010. This paper will explore the theoretical context of the current positive action provisions within England, Scotland and Wales. It will also discuss the early findings of a small-scale qualitative study carried out by the authors looking at the experiences of a purposive sample of public and private organisations in light of the potential for positive action in relation to employment in the UK.
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Crossing the rubicon: an exploration of the use of positive action provisions in Higher Education Institutions in the UKCrossing the rubicon: an exploration of the use of positive action provisions in Higher Education Institutions in the UK
