The Equality Bill promises the biggest shake up in discrimination law since the 1970s. Its provisions will have serious repercussions for employers, especially with regard to positive discrimination, openness on pay and the extension of age discrimination to the provision of goods, facilities and services. What should employers be most concerned about?
Q Does the Bill permit positive discrimination?
A As the law currently stands, an employer can take limited positive action to address under-representation of a particular group (for example, women) in its workforce. This can take the form of targeted advertising or training, but any subsequent selection must be carried out on merit alone. The Bill proposes that where two candidates for a job are equally qualified, under-representation could be used to decide between them. This proposal would, therefore, extend permissible positive action into what is currently unlawful positive discrimination.
Q Does the Bill therefore allow discrimination against white men?
A In most situations it will be groups other than white men that are under-represented in a workforce. In those situations, some white men will potentially lose out if employers adopt positive discrimination. There may, however, be situations where white men are under-represented in a workforce. In those situations under-representation would become a permissible tie-breaker, allowing an employer to select white men on the basis of their race or gender.
Significantly, this proposal shifts the emphasis of discrimination law away from the right of the individual to be treated on merit alone, to one where being a member of a particular group (defined for example, by gender or race) can determine a person's employment opportunities. This is confusing because the ministerial foreword to the White Paper begins: "Everyone has the right to be treated fairly..." The proposal actually means that someone who, through no fault of their own, happens to be in an over-represented group will potentially be treated less favourably simply by membership of that group.
Q Is positive discrimination going to be mandatory?