As a general rule, positive discrimination in favour of a particular category of persons involves discrimination against those not in that category. Depending on the particular situation, positive discrimination in favour of one category of persons is therefore likely to be unlawful discrimination against others.
The Equality Act allows what it calls “positive action” in some situations. It covers permitted positive action in two separate sections. One essentially restates previous law and came into force on 1 October. The other relates to recruitment and promotion, is new and is not yet in force – the coalition government is still considering whether or not to bring it into force.
The section which came into force on 1 October 2010 ensures that “positive action” is lawful if it is a proportionate way of achieving defined aims, essentially alleviation of disadvantage experienced by people sharing any of the “protected characteristics”, viz age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation. In essence this goes very little, if any, further than previous law.
The section which is not yet in force will, if and when it is implemented, allow an employer to take these “protected characteristics” into account in selecting to whom to offer a post if (i) people having the same protected characteristic are at a disadvantage or are under-represented and (ii) the candidates are each as qualified as the other(s). It covers not only employees and prospective employees but also applicants for contract work, prospective partners in a firm (including LLPs) and applicants for pupillage or tenancy in barristers’ chambers and so on.
Apart from these general provisions, the Equality Act 2010 also allows, as did previous law, positive discrimination in favour of the disabled. Further, as noted above in the note in this newsletter concerned with health questionnaires, the Act provides an exception from the normal ban on employers asking “pre-employment offer” health questions if positive action is appropriate for example in making arrangements for interviewing a disabled job applicant.
This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.