Mark Serby: Negative response to ‘positive’ equality law

But it isn’t just business bosses who need to be clued up by the introduction in employment law – those seeking new jobs or even promotions at work will also be affected.

The introduction will allow an existing or potential employer to take positive action either for or against a candidate in accordance to a range of “protected characteristics”.

Although this may seemingly create opportunities for under-represented candidates looking for work, it is likely to be a negative move on the whole as tribunal claims increase or, more broadly, become a hindrance to job creation, with employers left confused as to where the parameters are set.

In the three months to January, 2.53m people were unemployed, the highest figure since 1994.

Imagine then that you are one of those people, preparing for a job interview in the shadows of such a big change in employment legislation. As of today, you will be affected by an employer’s ability to take positive action either for or against you.

In the workplace, the intention of the legislation is to allow companies to take positive action to choose a more balanced mix of staff, giving jobs to candidates from under-represented groups, including ethnic minorities, people with disabilities and older people.

It will mean that employers can choose to hire candidates from under-represented groups provided that they are as qualified for the role as other applicants.

As examples, a manager will be able to lawfully hire a black man over a white man, or a woman over a man, provided that they have the same skill set.

The term positive action comes from the Equality Act 2010. That Act itself draws together all of the equality legislation previously found in the sex, race, age and disability legislation.

Positive action covers a range of measures which organisations can use where those with a “protected characteristic” (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation) experience some sort of disadvantage because of that characteristic.

Where any of these conditions apply, then positive action can be taken to overcome that disadvantage, meet that need or encourage participation in that activity. Positive action can be taken in relation to a wide range of activities, such as employment, education, training and service delivery.

This is not the same as positive discrimination, which means favouring someone solely because he or she has a particular protected characteristic. Positive discrimination is unlawful and there are currently no plans to change that position.

Recruitment or promotion must still be based on merit, and to appoint or promote a person just because he or she possesses a protective characteristic, would be positive discrimination, which is unlawful.

The candidates must be of equal ability before the employer is allowed to take positive action.

Yet already we can see the potential for uncertainty and disagreement. When Harriet Harman first introduced the Bill in the last Labour Government, she explained that the measures represent “a radical shift in our approach to fighting unfairness and breathes fresh life into our equality agenda”.

But discrimination against people on grounds of their race, gender, disability and age were already, and remain, illegal. Many will ask whether or not that does not already take our equality agenda far enough.

In my experience, while there may still be some occasions of illegal discrimination, this is uncommon. I am concerned that allowing positive action in recruitment will not make much difference – save to lead to more tribunal claims.

Businesses are already struggling to cope with the exponential increase in employment legislation that has been enacted in the past 15 years, and all this at a time of deep economic recession.

The present Government is already alert to the need to roll back some of this legislation, and surely this positive action under the Equality Act falls into this category of legislation that should be put on hold or repealed, particularly for small businesses.

When the idea of positive action was conceived, it may have caught the mood.

Now it feels out of place and is near the top of my list of business regulations to repeal.

Mark Serby is an employment law partner at Wake Smith & Tofields Solicitors in Sheffield.