The proposal to extend positive action law captured the imagination of the press more than anything else in the single equality bill. This aspect of the legislation will require careful implementation if the government wants employers to make use of it.

Don’t we already have positive action legislation in the UK?
Yes, in specific circumstances. It differs across various discrimination strands. Legislation allows organisations to provide training for, or place job adverts targeted at, minority groups. The aim is to encourage under-represented candidates, thereby increasing the diversity of the candidate pool.

What’s the difference between positive action and positive discrimination?
Positive action is about encouraging and assisting. Positive discrimination would be appointing a candidate because she was female or from an under-represented group. UK law does not allow positive discrimination. So if a greater number of women applied for a job after a targeted advert, all candidates would have to be treated equally and the appointment would have to be made entirely on merit.

Do organisations currently make use of positive action?
Some do as part of their diversity strategy via mentoring schemes and adverts that challenge stereotypes about particular jobs (for example, all engineers are men).

Currently, positive action is only justified where it is being used to compensate for disadvantage, or where an organisation can demonstrate that there are relatively few individuals of a particular age group, race or sex doing certain types of work either in the organisation, or in the country as a whole, or when compared to the population at large.

The Disability Discrimination Act 1995 (DDA) provisions are entirely different. The DDA enables positive action to be taken in favour of disabled candidates and allows employers to discriminate in favour of individuals because of their disability. It requires employers to compensate for disabled employees’ disadvantages by making reasonable adjustments.

What does the Government plan to change?
The proposals aim to widen the scope of the positive action provisions. There are measures to increase the number of female MPs, as well as the number of female, disabled and ethnic minority members of the population holding public office. The equality bill will also give employers greater freedom to fast-track and select from under-represented groups. The proposals appear to suggest that equality of opportunity will have one exception: employers will be able to “take under-representation into account when selecting” between equally suitable candidates, making it lawful to prefer the under-represented candidate in a tie-break.

How easy will it be to take positive action?
The government will have to take great care not to infringe European obligations. There are a number of European Court of Justice (ECJ) decisions that make clear that positive action can only be taken where the person given priority because of under-representation is equally well qualified. The ECJ has declared automatic preference of under-represented candidates unlawful. Employers must first satisfy themselves that the minority candidate they have chosen is as good as others in the selection pool.

There are risks with this. It may be difficult to identify equally well qualified candidates, and individuals who are not selected may challenge whether the successful candidate was equally good.

Would the UK be alone if it adopted positive action measures?
They do exist in other European jurisdictions – hence the ECJ cases testing the boundaries of positive action. In Germany, positive action is permitted under the General Equal Treatment Act introduced in 2006. But it is an option rather than a duty. Employers have to justify the action by demonstrating that it is suitable and reasonable. It operates in a similar way to the UK proposals in the equality bill, both in terms of recruitment and promotion opportunities: employers can prefer the under-represented candidate in a tie-break where two are equally well-qualified.

In Italy, employers can select a candidate to support a legitimate interest. Under disability legislation, organisations must employ a certain percentage of disabled staff. If an employer’s percentage falls below the minimum, it must select a disabled candidate in the next hiring.

France is much stricter. Positive action is banned, except for disabled candidates, where 6 per cent of an employer’s workforce must be disabled.