Will the Equality Bill allow employers to effectively tackle the inequalities that still persist in many British workplaces? No.
Let’s be honest – positive action is discrimination. Whether it is justifiable or, indeed, necessary is a totally different question. But I would not advise any client of mine to rely on these new proposals to openly plan for diversity. The Bill simply does not provide employers with a decent stab at defending what is ultimately an act of discrimination – choosing a candidate by reference to race or sex. By taking that very brave step an employer is exposed, both financially and reputationally. We might laud the government’s intentions here, but I would not put my client in the full glare of an employment tribunal, bearing its equality credentials clothed only with the skimpy wrapping of the Equality Bill.
Two candidates, one male, one female, otherwise equal – here is our first stumbling block as there is no such thing – you choose the man the woman claims discrimination. You choose the woman: the man claims she was not an “otherwise equal candidate” and so there was no basis to move to positive discrimination.
Business sense
Diversity makes business sense. The tools we currently have at our disposal to eradicate discrimination do not work or, more charitably, are too slow.
Female only shortlists do work. Quotas do work. Look at the Norwegian government’s example of positive discrimination with its recent policy of insisting that 40% of all directors of companies registered on the Oslo Bourse must be female. The corporate landscape changed beyond recognition. I agree that the next obvious step in the UK is positive discrimination. But it is a treacherous climb to ask an employer to follow without proper protection.
The boundaries around such action need to be razor sharp. And this blunt concept of ‘equally qualified candidates’ just does not cut it.
Even employers who embrace the diversity agenda and set targets for inclusion should not rely on this Bill to shape the profile of their organisation. The Equality Bill is not a charter for change – it is easier to define it by what it does not permit than what it promotes (see box). While it recognises the discrimination that persists within our society, it does not equip employers with the ability to change that landscape.
Rather than a sledgehammer to crack a nut, we have been given a child’s plastic spade to crush a boulder.
Tribunal trouble ahead
One of the other significant developments in the Equality Bill is the proposed power for a tribunal to make a recommendation.
Where an employer has been found to have unlawfully discriminated, as well as a financial slap on the wrist, a tribunal can make a recommendation relating the individual claimant. The proposal is now that such a recommendation may be made to affect everyone in the workplace. As a response to discrimination this has more guts to it and is potentially hugely problematic for employers.
Traditionally, tribunals have steered clear of telling employers how to run their business. In unfair dismissal claims a tribunal will not substitute its own view as to what constitutes fairness – it is simply a question of was the employer’s response to dismiss the employee within the reasonable band of responses? In bonus cases, again, the tribunal will not willingly overturn the decision of the employer because the tribunal should not act ‘like a bank’. Yet here we are contemplating a tribunal “recommending” how or who an employer should hire or promote.
My advice? Stick to merit and don’t mention the sex. It may take longer, but most of us will get there in one piece.
Julie Quinn, employment partner, Nabarro
Key points
- The Equality Bill does not give employers the right to set quotas based on inclusion
- It does not give employers the right to use female or ethnic shortlists for recruitment or internal promotion
- It does not give employers the right to openly recruit by reference to under representation of particular sections of society
- Any unconditional and absolute preference for women or ethnic minority candidates without any objective assessment of all candidates will fall foul of the EU equal Treatment Directive
