Featherstone presses ahead with positive action

Lynne Featherstone, the Liberal Democrat MP and equalities minister, is pressing ahead with 'positive action' provisions which would allow employers to give priority to candidates from under-represented groups.

Announcing the implementation of the bulk of the Equality Act 2010 this autumn, the government said the more controversial measures, such as positive action or the 'socio-economic' duty, would be postponed (see solicitorsjournal.com, 27 September 2010).

Home secretary Theresa May announced that the 'socio-economic' duty would be scrapped last month and it was expected that the positive action provisions set out in section 159 would share the same fate.

Under section 159, candidates with a 'protected characteristic' under the Act (female, from ethnic minorities, disabled etc'¦) can be preferred over other candidates who are 'as qualified'.

Featherstone announced last week that section 159 would be implemented in April 2011. As anticipated, she said section 78 of the Act, which would have forced firms to publish details of their gender pay gap, was being abandoned in favour of voluntary reporting.

James Davies, joint head of employment at Lewis Silkin, said he was 'mildly surprised' that the positive action proposals were going ahead but described them as 'window dressing'.

He said it was not clear whether 'as qualified' meant looking at candidates in the round or assessing them on the basis of minimum qualifications. If the second approach was used, he said there could be claims of positive discrimination which is illegal under European law.

Davies said he would never advise employers to rely on the positive action 'tie break' and instead encourage them to concentrate on finding explanations as to why one candidate was the best.

'Legal claims relating to recruitment are very rare,' he added. 'People don't know enough about why candidates are recruited.'

Edward Wanamba, employment partner at Russell-Cooke, said employers should proceed with 'great caution'.

He said the government's formal guidance on the issue was still to be published.

Jo Davis, head of employment at BP Collins, said she was not convinced that voluntary gender pay reporting would have much of an impact.

'The ones which have nothing to hide will publish, and the ones which don't, won't,' she predicted.

'There is still a considerable gap between male and female pay. Publishing information which suggested there was a problem could trigger claims.'

Annabel Mackay, solicitor in the equality team at Addleshaw Goddard, said diversity managers in the larger companies and in-house lawyers were likely to take different positions to the publication of gender pay information.

'Diversity managers might press for publication to show transparency, but in-house lawyers are likely to be more cautious,' she said. 'Once data is published it could be used as ammunition for equal pay claims.'

At the launch of the 2010 Female FTSE 100 report in London last week, Featherstone said the government would review the numbers of companies releasing information and its quality every year to assess whether the voluntary approach was successful.

She said the government would 'take a view over time whether alternatives are required, including a mandatory approach through section 78 of the Equality Act'.

'But we really expect and want the voluntary approach to work,' she added. 'This will give better information and is more likely to drive successful change.'