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

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

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

4. 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

5. 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

6. 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”

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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