Weekly dilemma: Positive action

I’d like to provide more opportunities for women to work in my heavily male-dominated business, and I understand that new provisions allow me to do this. What can I do, and how do I do it?

Your starting point is the unsurprising conclusion that if you recruit a woman because she is a woman and not because she is the best candidate, you are heading for trouble. Discrimination is discrimination, and your very laudable intentions do not alter that.

But wait, I hear you cry, what of the new positive action provisions under s.159 of the Equality Act 2010? Don’t they allow me to favour any protected group that I believe to be under-represented or disadvantaged in my workforce? Will s.159 not help me achieve my aim? In practical terms, the answer is no. Neither s.159 nor the voluminous accompanying Government Equalities Office guidance gives any hint of the essentially flawed nature of the positive action scheme as it relates to recruitment and promotion.

The problem is this: to be entitled to pick a woman rather than a man just because she is a woman, you need to satisfy two conditions. First, the two candidates for recruitment must be “as qualified as” each other (s.159) or “of equal merit” (the Guidance). How often, genuinely, have you had two candidates and absolutely no preference between them, a selection you could as well make by the tossing of a coin? The Guidance gives the example of one employee with experience of the role sought but no formal qualifications, as against another with less experience but certificates up to the eyeballs. The increasingly sceptical reader is asked to believe that the employer would have no preference between them, so for present purposes let us make that assumption.

The second condition is that you must reasonably believe that employees of the protected characteristic in question, here gender, are under-represented in the workplace. What is not clear is which workplace. Clearly you know already that men are the majority in your own organisation, but the Guidance suggests also that local or national figures may be relevant. This leads to the bizarre conclusion that you might be able to use national imbalances to apply positive discrimination in a workplace that was already balanced.

If the man you reject because he is a man takes that decision badly, then he can challenge any part of the process. He can claim that he is better qualified than the woman you hired. Neither s.159 nor the Guidance indicates whose view prevails here – is it an objective question to be weighed by the Employment Tribunal, or an issue for the subjective but reasonable belief of the recruiting employer? One thing is clear: if you appoint the woman on the basis of positive discrimination, it is not then open to you in the face of challenge by the man to argue that she was the better candidate anyway. People are either “as qualified” as each other or they are not; so you cannot start on one basis and then switch to the other when the wheels come off.

In summary, there are two salient points. First, if you are going to use s.159, do keep the clearest possible notes in support of your conclusions both that the candidates are of equal merit and that female candidates are at the required disadvantage. Second, although the Guidance makes it clear that use of the positive discrimination provisions is voluntary, you can imagine how easy it would be for the unsuccessful candidate to argue that a decision not to use them was itself discriminatory. In other words, even if you take the view that the hurdles attached to a successful use of s.159 are too great, you still need to keep the records to show why you picked the candidate you did.

David Whincup, partner and head of employment, London, Squire Sanders Hammonds

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