Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Vickers, Lucy
• Pages: 48-49

48

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In the UK, positive action is permitted in national law in respect of raci al or ethnic origin,

religion or belief, disability, ag e and sexual orientation. In addition, Section 149 Equality

Act 2010 creates the Public Sector Equality Duty. This provides that public authorities must

have due regard to the need to eliminate discrimination, harassment, victimisation and

any other conduct that is prohibited by or under the Act; advance equal ity of opportunity

between persons who share a protected cha racteristic and persons who do not share it;

and foster good relations between persons who share a protected characteristic and

persons who do not sha re it. In r esponse, many public sector organisations have put in

place processes to try to promote equality in the workplace and in the provision of their

services, as part of a process of mainstreaming equality. Section 75 Northern Ireland Act

1998 imposes a similar duty on public authorities.

In GB, the EqA provides quite broad provisions permitting the taki ng of any proportionate

positive action where a person ‘reasonably thinks that— (a) persons who share a protected

characteristic suffer a disadvantage connected to the characteristic, (b) persons who share

a protected characteristic have needs that are different from the needs of persons who do

not share it, or (c) participation in an activity by persons who share a protected

characteristic is disproportionately low’ (Section 158). Where emplo yment is concerned,

Section 159 allows more favourable treatment of those from a disadvantaged or under -

represented group as regards recruitment or promotion where (but only where) the person

appointed/ promoted is as qualified as others over whom s/he is preferred. These

provisions (in particular Section 159) were relatively controversial in the debates about the

Equality Bill (as it then was) but have generated little discussion sin ce.

The EqA also makes provision (Section 104) for positive action across all the protected

grounds in the selection of candidates for election, something which previously was

available only in relation to gender. Those provisions are intended to enable parties in GB

to take a wider range of positive action measures in relation to matters regarding their

constitution, organisation and administration. T hey are not, however, permitted to adopt

wide-ranging positive action measures to ensure the selection of ethnic minority candidates

for parliamentary seats such as by introducing all-minority shortlists for candidate selection

in certain constituencies. (Women-only shortlists, by contrast, are and will remain lawful.)

In NI, as in GB, only disabled people are protected from discrimination related to disability,

so all p ositive action related to disability is lawful. In addit ion, some li mited training and

encouragement measures are permitted in the employment co ntext in relation to ra ce/

ethnicity and sexual orientation (RRO Articles 35 and 37, SOR 2003 Regulation 29).

Examples include placing advertisements in the press welcoming gay, lesbian and bisexual

people; or offering training facilities in th e workplace aimed at combating disadvantage.

Regulation 31 of the Age Regs provides a specific exception is made for positive action that

gives people of a particular age access to training facilities to help them take on particular

work, or that allows them t o take advantage of opportunities fo r doing particular work,

where it seems reasonably necessa ry to introduce these measures to prevent or

compensate for disadv antages linked to age. However, because the DDA prohibits

disability-related discrimination only ag ainst those recognised by the Act as ‘disabled’,

there was no need to include in the DDA specific positive action provisions like those in

other anti-discrimination legislation that operate as exceptions to the prohibition of

discrimination.

Prior to the implementation of the positive action provisions of the EqA, the most

comprehensive positive action p rovisions relating to employment in the UK were found in

FETO. Article 4 FET O permits and in certain cases requires empl oyers to take ‘affirmative

action’ which is defined as: