University of Chester
Forum for Research into
Equality and Diversity
Launch Event
The Limits of Positive Action
Muriel Robison
Remember this?
Challenges
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To women only shortlists
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Alternative selection methods
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Twinning and zipping
Used in devolved elections
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Jepson and Dyas Elliot v The Labour Party
1998 IRLR 116 Employment Tribunal
54% Welsh AMs and 50% Scottish MSPs
Despite uncertain status under EU law
Positive action for
political parties
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Sex Discrimination (Election Candidates)
Act 2002
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Provisions replicated in Equality Act s104
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With sunset clause by 2015
Now got until 2030
Beyond sex
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To reduce inequality in numbers
But no shortlists
And must be proportionate
Positive action in recruitment
and promotion: the tie break
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Employers can take account of protected
characteristics where:
One candidate is “as qualified as” the other
Employer “reasonably thinks” the protected
group is under-represented
Proportionate means of achieving the aim of
overcoming the disadvantage
And it is not an automatic policy
So each case considered on own
merits
What does it mean?
as qualified as
reasonably thinks
 “not a matter only of
 “Requires the
academic qualification, but
application of logic and
rather a judgment based
rational principles but
on criteria.... to establish
does not require proof
who is best for the
based on undisputable
job...including matters
statistical evidence”
such as suitability
competence and
professional performance”
Positive action in general:
employment and beyond
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Where as a person “reasonably thinks”
That persons sharing the protected
characteristic
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suffer a disadvantage connected to it, or
Have needs that are different from the
needs of persons not sharing it, or
Have a disproportionately low participation
rate in the activity
When are special measures
permitted
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Special measures for protected groups
Which are a proportionate means of
meeting the aim of
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Enabling or encouraging persons to
overcome or minimise disadvantage
Meeting differing needs
Enabling or encouraging persons to
participate in an activity
The limits of positive action
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The intention is to permit all action
which is permitted by European law
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“must remain within the limits of what is
appropriate and necessary in order to
achieve the aim in view”
But despite intention not to deter those
contemplating positive action
risk of challenge outweighs advantage
No obligation to consider initiatives
Except?.....Public sector duty
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Having due regard to the need to:
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Remove or minimise disadvantages
Take steps to meet differing needs
Encourage participation where it is
disproportionately low
Compliance with the duty may involve
treating some more favourably
“due regard” contested but means
means something more than voluntary
Suggestions for
research projects?
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Important to understand the extent to
which provisions are being used, or not
examples of the “tie break” provisions
being used?
if so are they making a difference
How could the provisions be improved
to secure full equality in practice?
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Incentives? Sanctions?