Legal opinion: Flexible working and positive action for top judges

Employment lawyer Linda Stewart looks at possible measures to improve judicial diversity.

While the percentage of women and black, Asian and minority ethnic (BAME) judges within the judiciary has increased over the last decade, they remain noticeably absent from the ranks of the most senior judges in UK courts and tribunals. Progress to redress the imbalance has been slow, with the percentage of women within the courts-based judiciary having increased marginally to 22.3% and BAME groups to just 5.1%. With renewed commitment to implementing all of the recommendations set out in the Report of the Advisory Panel on Judicial Diversity, the Ministry of Justice (MoJ) has now launched a consultation on a series of measures for reforming the rules and regulations currently used to appoint judges.

Backed by Master of the Rolls, Lord Neuberger, and some prominent women judges, the proposals in the consultation, “Appointments and Diversity: A Judiciary for the 21st Century“, provide for more flexible-working arrangements such as part-time jobs and job-share opportunities to help increase the number of women judges in the High Court, Court of Appeal and Supreme Court. They also seek to enable the Judicial Appointments Committee (JAC), responsible for selecting and deciding who to select for appointment, to use the positive action provisions of the Equality Act 2010.

Positive action under the Equality Act 2010

Section 159 of the Equality Act 2010 came into force in April 2011. It allows employers, in defined circumstances, to appoint a candidate from a group that shares a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) over someone who does not share that characteristic. Employers can do this if they consider that group to be disadvantaged or under-represented in the workforce or if its participation in an activity is disproportionately low. It is, however, important to remember that this action can be taken only where the candidates are as qualified as one another. To avoid any trouble, employers must be in a position to demonstrate that taking such action to promote equality is a proportionate way of pursuing a legitimate need, ie where there is evidence of disadvantage or under-representation.

Taking positive action does not mean that an employer can appoint a less suitable candidate just because that candidate has a protected characteristic. Nor can the employer operate a policy or practice whereby all women or BAME candidates are automatically shortlisted or appointed. That would instantly amount to positive discrimination and be deemed unlawful. The successful candidate should always be appointed on merit and these proposed MoJ reforms remain loyal to that principle. Contrary to what some people have suggested, unlawful positive discrimination, eg giving women and ethnic minorities top priority irrespective of merit, is not on the cards. Likewise, the proposals do not suggest implementing compulsory women quotas.

No two candidates are the same

For the positive action provisions to apply, the chosen candidate must be “as qualified as” the other candidate(s). While the Equality Act does not define what is meant by “as qualified as”, the accompanying guidance does suggest that selection criteria should be based on the candidate’s overall ability, competence and professional experience, together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job. While the MoJ’s consultation document envisages use of the tie-break provisions at the end of the recruitment process, the JAC could lawfully treat a candidate more favourably at any earlier stage in the selection process, provided that any action taken was a proportionate way of enabling or encouraging people from the disadvantaged or under-represented group to overcome or minimise the disadvantage of that group.

How can positive action help the judiciary?

The MoJ consultation document acknowledges that there is a problem: “Lack of diversity among judges has been shown to have a negative impact on the experience of people who use the courts, and limits the range of life experiences that judges can draw upon.” Similar observations are reflected in the diversity strategies of businesses across Europe, pursued not only for ethical or legal reasons but because of the business benefits they deliver: enhanced employee recruitment and retention from a wider pool of high quality candidates; improved corporate image and reputation; and enhanced marketing opportunities. For instance, employers might decide to take positive action on discovering that their workforce is made up differently to the clients or customers they aim to serve, by encouraging candidates who share under-represented protected characteristics to apply for vacancies. In a similar way, recruiting from a more diverse pool of lawyers is likely to assist the judiciary to better understand and serve those who use the courts.

Linda Stewart, head of employment, Simpson Millar LLP

FAQs on positive action from XpertHR:

Comments are closed.