Positive discrimination

UK law is generally hostile towards positive discrimination practices. There is little prospect of any positive discrimination measures being made lawful in the near future, although the Government is currently considering allowing such measures in the selection of political candidates. However, even the Labour party was defeated in an employment tribunal for imposing women-only shortlists for selection of parliamentary candidates.

“Positive action” in UK law

There are, however, a number of exceptions to the general principle against positive discrimination. These are referred to in the legislation as “positive action”.

  • The Sex Discrimination Act 1975 and the Race Relations Act 1976 allow positive action in training individuals who are job applicants or other non-employees, where it reasonably appears that during the preceding 12 months there were either no persons or a comparatively small number of persons of one sex or a racial group doing that particular work in Great Britain. In such situations it is lawful to give persons of that sex or race training for that work or to encourage them to take advantage of opportunities for doing that work.

  • Trade unions, employee associations and professional trade organisations can give preferential treatment to members of one sex or race in training them for internal posts in the organisation and encouraging them to apply for such posts. Again, they must show that in the preceding 12 months there were either no members or a comparatively small number of members of that sex or race holding such posts. These organisations can also embark upon recruitment campaigns aimed at one sex or race, providing that the same 12-month qualifying condition applies.

  • The “genuine occupational qualification” rules allow employers to target one race or sex for particular jobs in certain limited circumstances.

Equal Treatment Directive

One of the main curbs on any positive discrimination laws in the UK is the Equal Treatment Directive. The ECJ took a fairly strict line in the Kalanke case, 1996, ICR 314, and declared that any positive action which effectively guaranteed a female candidate the position in question where a male was equally qualified, was unlawful. However, in the later case of Marschall, 1998, IRLR 29, the ECJ showed a more relaxed approach to such practices within public sector bodies. It is possible therefore for the Government to adopt a similar practice in the public sector and allow positive discrimination between two candidates where one candidate comes from an under-represented group, provided that it does not absolutely guarantee that in the circumstances that person would get the job.

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