University of Chester University of Liverpool Conference 2015 The Equality Act 2010: 5 Years on Muriel Robison

Positive Action Bridging the Gap: An exploration of the use and impact of positive action in the UK Chantal Davies and Muriel Robison

Conceptualising positive action Eradicating discrimination Purposefully inclusionary policies Outreach programmes Preferential treatment Redefining merit McCrudden (1986)

The European Context With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers Article 157(4) TFEU

The domestic context Special measures for protected groups Which are a proportionate means of meeting the aim of Enabling or encouraging persons to overcome or minimise disadvantage Meeting the different needs of protected groups Enabling or encouraging persons to participate in an activity section 158 Equality Act

Recruitment and promotion: the tie break Employers can take account of protected characteristics where: One candidate is “as qualified as” the other Where employer “reasonably thinks” the protected group is under-represented So long as it is a proportionate means of achieving the aim of overcoming the disadvantage and it is not an automatic policy Each case considered on own merits Section 159 Equality Act When Harriet Harman introduced these clauses when the bill was going through Parliament, conservative backbenchers claimed that this was “outrageous” and “disgusting”

The limits of positive action The intention is to permit all action which is permitted by European law Thus 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 There is still of risk of challenge And there is no obligation to do it

Except?.....Public sector duty Having due regard to the need to advance equality of opportunity means having due regard to the need to: Remove or minimise disadvantages Take steps to meet differing needs Encourage participation where it is disproportionately low Section 149(3) Equality Act

Exploring the use of positive action provisions lack of empirical research Research by International Centre for Migration Policy Development 2008 Examples from specialist media All suggest strategies limited to outreach programmes Judicial Appointments Commission initiative is an exception

The need for further research Proposal to explore awareness, use and perceptions of voluntary, public and private bodies towards the existing positive action provisions across Wales, England and Scotland Small scale survey and purposive sampling to determine base line and identify focus for detailed research Longer term to evaluate its use

Initial findings - work in progress 18 replies, 60/40 public/private 90% with more than 100 employees 28% not aware, mainly in private sector Information from 3rd party stakeholders offering sector-wide advice or from dedicated human resource departments Although 72% aware, only 35% had used All public sector, most referring to external initiatives such as Athena Swan, Two Ticks

Future intentions Only 27% envisaged using positive action in the future None envisaged using the tie break provisions Yet 61% of the view that positive action provisions are necessary to alleviate disadvantage in the UK Early indications confirm anecdotal evidence