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End Positive Discrimination – Repeal ‘Positive Action’ in the Equality Act 2010

Comment 15th July 2010

Repeal or alter the section 'Positive Action' (Part 11, Chapter 2) contained in the Equality Act 2010, enacted on 8 April 2010.

Notably:

159 Positive action: recruitment and promotion

(1) This section applies if a person (P) reasonably thinks that—

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

(b) participation in an activity by persons who share a protected characteristic is disproportionately low.

(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—

(a) overcome or minimise that disadvantage, or

(b) participate in that activity.

(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4) But subsection (2) applies only if—

(a) A is as qualified as B to be recruited or promoted,

(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and

(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

(5) “Recruitment” means a process for deciding whether to—

(a) offer employment to a person,

(b) make contract work available to a contract worker,

(c) offer a person a position as a partner in a firm or proposed firm,

(d) offer a person a position as a member of an LLP or proposed LLP,

(e) offer a person a pupillage or tenancy in barristers’ chambers,

(f) take a person as an advocate’s devil or offer a person membership of an advocate’s stable,

(g) offer a person an appointment to a personal office,

(h) offer a person an appointment to a public office, recommend a person for such an appointment or approve a person’s appointment to a public office, or

(i) offer a person a service for finding employment.

Why does this matter?

There is nothing equal about positive discrimination. As a society, we should strive to promote equality for every individual, and all forms of unreasonable discrimination should be penalised.

The vast majority of the content contained within the Equality Act 2010 should be commended for aiming to achieve this goal; however, the chapter in question is an attack on meritocracy and facilitates positive discrimination.

Subsection (3) of  'Positive action: recruitment and promotion' allows an employer to treat a person more favourably in connection with recruitment or promotion than another person because they have a 'protected characteristic'.

The justifications provided in (4)(a) and (2)(a) and (2)(b) are too broad and open to abuse.

For example, (4)(a) notes that the individuals must be 'as qualified', but what does this broad term refer to? Education? Most graduate jobs require an undergraduate degree with a 2.1. or 2.2 classification. Does this mean that although both candidates have a standard 2.1 degree, the candidate who is more suitable in terms of personality, work ethic or extracurricular activities may lose out to a candidate who is inferior in this respect, due to the fact that they possess a 'protected characteristic' and the business wants to appear more diverse?

In my view, positions should be attained through merit and capability – 'the best person for the job'. Instead of allowing employers to fast-track candidates based on possessing a 'protected characteristic' and discriminating against those who do not possess a 'protected characteristic', the government should be aiming to address the underlying factors as to why such groups are underrepresented; whilst,eliminating all forms of unreasonable discrimination against all groups in the recruitment process.

It is wrong that we are aiming to tackle inequality and discrimination with further, legalised inequality and discrimination.

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