Employment Law Advocates

The dust is now beginning to settle following the publication of the Equality Bill a month ago. Not surprisingly, the most attention has been focused on provisions which allow positive discrimination to be used as a tie-breaker in recruitment, where there are two equally well qualified candidates. Much of the criticism has been ill thought out and reactionary but there has also been some informed commentary as well, one of the best examples being from the blogger, Head of Legal. There are two related concerns raised by his detailed analysis, firstly that the bill expressly outlaws policies that candidates from disadvantaged groups will always be preferred. As Head of Legal rightly points out, it is not immediately obvious how positive discrimination can be used without it becoming such a policy. Furthermore, a reason for this restriction seems to be to make the bill compatible with EU law and Head of Legal fears this problem will de facto undermine any such compatibility even if it does not do so on its face.

However, it is necessary to look behind the bill to see both the reason for this provision and the way that it can be made to work. It is a common excuse by employers that they disproportionately appoint white men because they are better qualified than other candidates. They deny being sexist or racist and attribute any inequality to failures elsewhere, such as in the education system. While some people are naturally cynical about this reasoning, there is undoubtedly a great deal of truth to it but, if we take it seriously, several things follow from it. For one thing, a person who does well in an education system in which they are disadvantaged is clearly objectively better than a person who does equally well without any such disadvantage, and has more potential for development. It would obviously make sense to prefer that person in a recruitment selection process. However, there would be some circumstances in which it would be discriminatory to automatically prefer a candidate from a minority group, for example, in a case where the choice is between a black candidate from a privileged educational background and a white candidate from a disadvantaged one. Therefore, sensible discretion must be applied rather than a policy.