Industry experts have poured cold water on government hopes that the new Equality Act will encourage employers to take positive action in recruitment.
The Act, which becomes law in October after the Equality Bill was passed by Parliament last week, will enable employers to favour under-represented groups during recruitment processes - provided the candidates are of equal suitability - to increase the diversity of their workforces.
But Audrey Williams, partner at law firm Eversheds, warned it is "far from obvious" when individuals could be legitimately considered 'as qualified' as others.
Opinion... by Marian Bloodworth
According to the House of Lords debate, an employer does not have to demonstrate that candidates have exactly the same qualifications as long as both are similarly suitable for the position. While this is helpful, in practice, employers are still going to be reluctant to use positive action. If they get their assessment of whether two candidates are equally suitable wrong, the recruitment or promotion is itself likely to be discriminatory, which could lead to claims. Employers may feel that using positive action introduces a degree of risk into the recruitment process.
Marian Bloodworth is an employment lawyer at Lovells
"Cases from the European Court of Justice suggest that preference can only be given where candidates possess 'substantially equivalent merits', although precisely what that means is not clear," she said. "Given this uncertainty, it is hard to see many employers making use of the new positive action powers."
Williams said this would be especially difficult for senior level appointments, where candidates' career histories are far more varied, and where a compensation award for unlawful discrimination against an unsuccessful candidate could run into hundreds of thousands of pounds.
HR professionals contacted by Personnel Today agreed. Gill Hibberd, HR director at Buckinghamshire County Council and former president of the Public Sector People Managers' Association, told Personnel Today: "It's really difficult to differentiate when you're looking at cultural values - you are stepping into some real grey areas.
"There are certain organisations where it would be easier to apply, when technical assessments are involved, but I have got some real issues around senior roles."
Donna Miller, European HR director at Enterprise Rent-a-Car, agreed. "When looking at senior roles, it's about culture and values as well as qualifications," she said. "If people don't buy into that, it's not going to work."
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However, Martin Tiplady, HR director at the Metropolitan Police
, which has pioneered the use of positive action, insisted it could work if employers were clear about their objectives. "It's not about setting targets; it's about creating a better organisation," he said.
Tiplady stressed that recruitment decisions would "always be decided on ability". But steps such as fast-track training for non-white officers have seen the percentage of ethnic minority officers in the Met rise from 2% in 2001 to 9.5% this year, he said.
However, the debate may be futile as Mark Harper, shadow minister for disabled people, confirmed that a Conservative government would not bring in the positive action provision.
Other equality issues covered by the Act include a ban on pre-employment health checks and measures to enforce employers to report their gender pay gaps by 2013. Click here for the top 10 areas of the Act affecting employers.
The Equalities Act: key clauses analysed in detail
Pre-employment health checks
What is happening? For the first time, employers will be prevented from asking candidates questions about their health that are unrelated to the job role. It will mean those with mental health issues, a medical condition or a disability will not be forced to disclose their condition prior to the offer of employment, unless it hinders their ability to do the job.
Reaction: Ben Willmott, senior public policy adviser at the Chartered Institute of Personnel and Development, said: "We have supported this amendment. The clause doesn't prohibit asking questions - but employers (in most cases) can't do it until the job offer has been made. They can then consider whether reasonable adjustments can be made and, if something comes to light, the job offer can still be withdrawn."
Equal pay audits
What is happening? The Act will make it possible for the government to require all employers with more than 250 staff to report their gender pay gap from 2013, if sufficient progress on reporting has not already been made voluntarily. Public bodies with more than 150 employees will also be required to report on gender pay as well as other equality data including the number of black, Asian and minority ethnic workers, by April 2011.
Reaction: Rachel Dineley, employment lawyer at Beachcroft, said: "It is a headache for any employer - a costly use of time and resources, particularly when organisations are under all sorts of other pressures. These audits may never be required. Labour won't bring them in until 2013, and the Conservatives say they won't do even then."
Discrimination by association
What is happening? The Act will extend the law on direct discrimination to include discrimination by association and perception to disability, sex, gender reassignment and age in both the employment field and beyond - for example, to the provision of goods and services.
Reaction: Marian Bloodworth, employment lawyer at Lovells, said: "The key action for HR at this stage is to make sure that robust procedures are in place to deal with such requests. Managers should be taking decisions about whether to grant or refuse such requests based on genuine business reasons and documenting these appropriately. It would then be difficult for an employee to argue that the refusal of a request was discriminatory on the grounds of association, because they will not be able to show that other employees would have been treated differently."