UK equality law permits positive action measures in hiring to address underrepresentation
the verdict
SUPPORTED
the evidence backs this
refutedsupported
the weight of evidence
2 sources for · 1 against
Peer-reviewed and reference sources confirm that Section 159 of the UK Equality Act 2010 allows employers to apply positive action tie-break preferences to address underrepresentation, though scholarly analysis disputes whether these provisions qualify as true positive action.
This article argues that Higher Education Institutions should adopt positive action in recruitment and promotion to tackle women’s under-representation in senior leadership roles. In a tie-break situation where two candidates are “as qualified as each other”, section 159 of the UK Equality Act 2010 allows employers to give preference to a candidate from an under-represented group. The use of this measure, however, is often contested on the grounds that it is a form of reverse discrimination, it is tokenistic and that it can undermine meritocracy. This article seeks to challenge these objections and suggests that, far from undermining meritocracy, the use of positive action in recruitment and promotion could prove a useful tool to tackle gender bias, unpack stereotypes and re-appraise how merit is defined and assessed.
Purpose
– The purpose of this paper is to explore the claim that the tie-break criterion introduced under the Equality Act 2010 is not really positive action as is claimed by its government sponsors. It evaluates this claim by locating the tie-break into equal opportunities theory, taking into account merit considerations, and reviews its potential implications.
Design/methodology/approach
– A conceptual discussion of the tie-break.
Findings
– The paper concludes that the tie-break is not positive action, nor is it positive discrimination. It employs the framework established by Forbes (1991) and attempts to locate it in theoretical discussions of the need to refine merit to take identity characteristics into account. While it could serve to make a more sophisticated approach to merit possible it fails to achieve its implicit potential in this regard.
Research limitations/implications
– The paper is conceptual and will benefit from empirical support in the future.
Practical implications
– Practically, the tie-break promises to add some greater clarity to the muddled understanding of equal opportunities and diversity that underpins much policy and legislation. As a result it will arguably prove hard to implement and will carry other associated problems.
Social implications
– Socially, the tie-break, mis-represented as it currently is, promises to create greater uncertainty around the nature and purposes of equality of opportunity. Consequently, it could exacerbate tensions and hostilities and promote significant resistance to “equality” measures.
Originality/value
– This paper is an original conceptual piece that will shine a light on an important legal innovation. The tie-break is not what it is described to be and carries both potential and threat for advocates of equality of opportunity. In pursuing socially significant outcomes of this type, conceptual accuracy and transparency are vital, and this paper contributes to this endeavour.
Affirmative action (also sometimes called reservations, alternative access, positive discrimination or positive action in various countries' laws and policies)
Affirmative action (also sometimes called reservations, alternative access, positive discrimination or positive action in various countries' laws and policies) refers to a set of policies and practices within a government or organization seeking to address systemic discrimination. Historically and internationally, support for affirmative action has been justified by the idea that it may help with
Affirma…
In the United Kingdom, hiring someone simply because of their protected-group status, without regard to their performance, is illegal. By default, so is any other form of discrimination, quota or favouritism based on such "protected characteristics" in education, in employment, during commercial transactions, at private clubs or associations, and while using public services.
The Equality Act 2010 does allow for membership in a protected and disadvantaged group to be considered in hiring and promotion when the group is under-represented in a given area and if the candidates are of equal merit (in which case membership in a disadvantaged group can become a "tie-breaker"). Under Section 159 of the Equality Act 2010, an employer must "reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity" and any positive action must be "a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity". Specific exemptions include:
The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: women, persons with disabilities, aboriginal peoples, and visible minorities. Less than one-third of Canadian Universities offer alternative admission requirements for students of aboriginal descent. Some provinces and territories also have affirmative action policies. For example, in the Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status.…
Everything we examined (3)
This check searched the claim as stated. It did not run a separate search for evidence against it.