The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More (1996)). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

Copyright Seán J Crossan, 22 August 2019

Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

Don’t do it!

george-pagan-iii-624417-unsplash.jpg

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:


https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.

Copyright Seán J Crossan, 17 & 26 May and 17 August 2019

Burka bans and horse racing in a Hijab

Photo by أخٌ في الله on Unsplash


I have just been reading two, contrasting stories
about Islamic dress codes which appeared in today’s UK media.

The first story comes from our close neighbour and EU partner, the Netherlands which has decided to bring in a new law banning certain forms of Islamic dress – principally the Burka, Hijab and the Niqab – from being worn by female Muslims in hospitals and schools and while travelling by public transport. This ban imitates similar initiatives in other EU member states such as Austria, Denmark, France and Germany. Those individuals who ignore or flout the ban run the risk of being fined €150. Some Dutch politicians, for example, Geert Wilders of the far right Party for Freedom would like the law to be extended in order to ban Islamic headscarves.

The second story comes from the UK and couldn’t be more different in tone. The BBC reports that a female, Muslim jockey, who wears the Hijab, has made history by winning the Magnolia Cup at Glorious Goodwood.

Links to the two stories can be found below:

http://news.sky.com/story/netherlands-burka-ban-comes-into-force-in-schools-hospitals-and-on-buses-11774887

Khadijah Mellah: Hijab-wearing jockey triumphs on Haverland and makes history

These two stories made me think about the limits of tolerance in relation to the outward signs of religious belief in our communities. Under UK and EU laws, a person’s religion is a protected characteristic and s/he has the right not to be subjected to unlawful, less favourable treatment (discrimination).

The right to enjoy protection from religious discrimination was first introduced to the mainland UK as a result of the EU Directive 2000/78/EC on Equal Treatment in Employment and Occupation. The laws on religious discrimination were to be found in the Employment Equality (Religion or Belief) Regulations 2003. It should be noted that the scope of these Regulations was limited in that they applied only to the area of employment – not, for example, the provision of goods and services.

Previously, Northern Ireland was the only part of the UK which had laws on religious discrimination – for understandable reasons given the troubled history of that part of the world. The Regulations did not extend to Northern Ireland because it already had laws in place to deal with this issue.

The Regulations have now been superseded by the provisions of the Equality Act 2010 (primarily Section 10) which are much wider in scope in that they cover both religious discrimination in employment and the provision of goods and services.

Additionally, Article 22 of the EU’s Charter of Fundamental Rights recognises a person’s right to cultural and religious diversity.

Wearing Islamic dress is obviously a way in which very religious members of this community can express their religious beliefs. Reading both articles today, I found myself asking the question what would be the legal effects if a similar ban on Islamic dress was introduced in the UK?

The new UK Prime Minister, Boris Johnson, has made disparaging remarks about forms of Islamic dress, but admittedly he does not seem willing to introduce a ban.

Countries such as Austria, Denmark, France, Germany and now the Netherlands are just as much bound by laws such as Directive 2000/78/EC and the Charter of Fundamental Rights as the UK is at the time of writing, so how do they justify banning certain forms of Islamic dress?

Freedom of religion is not absolute and sometimes the State can decide that a person’s religious beliefs must take second place if they clash with other people’s human rights (e.g. sexual orientation) or general public safety goals. In the UK, discrimination less favourable treatment in connection with a person’s protected characteristics may be permitted under the Equality Act 2010 if it can be objectively justified i.e. it is a proportionate means of achieving a legitimate aim. Health and safety or concerns about terrorism are often grounds used by States across the EU to justify periodic crackdowns on the wearing of Islamic dress in public places.

Copyright Seán J Crossan, 1 August 2019

Who’s the daddy?

Photo by Sandy Millar on Unsplash

Coming on the back of one of my recent blogs about gender reassignment (Gender Neutral? published on 25 June 2019), I spotted an interesting story appeared on Sky News today.

It concerns a legal action taken by Freddy McConnell, a multimedia journalist with The Guardian newspaper, to have himself declared the father of a child. There would seem to be nothing particularly significant about this. Mr McConnell is a transgender man and he gave birth to the child in 2018 after he had undergone gender reassignment and was no longer legally recognised as male.

When he attempted to register himself as the child’s father, the registrar refused to do this – hence the lodging of the legal action before the English High Court’s Family Division.

In terms of Section 7 of the Equality Act 2010, a person who has undergone or who is contemplating gender reassignment can bring a legal action under the Act if they believe that they have been subjected to unlawful, less favourable treatment (prohibited conduct).

The story has now hit the headlines because Mr McConnell had enjoyed anonymity while the action is still to be decided. He has now lost this anonymity because he participated in a documentary (partly produced by his employer) about his struggle to be named as his child’s father rather than its mother.

Other media outlets, such as The Telegraph, challenged the anonymity order as they argued that it infringed the right of journalists to comment freely on a matter of legitimate, public interest.

Human rights

Interestingly, the story then became not merely about transgender rights, but also one of human rights (in terms of the Human Rights Act 1998). There was a conflict between Mr McConnell’s right to privacy and a family life and the right of freedom of expression of journalists (Articles 8 and 10 respectively of the European Convention on Human Rights). On this particular matter, Mr McConnell has lost his attempt to remain anonymous as Sir Andrew McFarlane, President of the High Court’s Family Division has found in favour of The Telegraph et al.

It remains to be seen whether Mr McConnell will win his legal action to be named as his child’s father on the birth certificate.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/man-who-gave-birth-loses-anonymity-in-his-bid-to-be-registered-as-father-on-birth-certificate-11764821

A link to Sir Andrew McFarlane’s judgement can be found below:

TT v YY [2019] EWHC 1823 (Fam) Case No: FD18F00035

https://www.judiciary.uk/wp-content/uploads/2019/07/TT-anonymity-judgment-150719.pdf

Copyright Seán J Crossan, 17 July 2019

Boxing clever?

Photo by Ryan Tang on Unsplash

In a previous blog (Indirect discrimination? published on 21 February 2019 and updated on 8 July 2019), I discussed the form of prohibited conduct known as indirect discrimination in terms of the Equality Act 2010.

Section 19 of the Equality Act 2010 defines indirect discrimination:

‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’

Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Employers and service providers (and other organisations) must be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people, members of a faith group or people from certain racial or ethnic groups) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554).

So, bearing the above in mind, it was with some interest that I saw a story reported by the BBC about a policy imposed by the Welsh Amateur Boxing Authority that all boxers have to be clean shaven in order to participate in matches. This rule is being challenged by Aaron Singh, who is a member of the Sikh community. Singh is claiming that the rule prevents him from boxing. As outward manifestations of their race, religion and culture, many Sikh men will grow beards. Especially religious males in the Sikh community will also wear a Dastar, pagri or pagg (forms of headwear signifying religious and cultural observance). A Kirpan – a ceremonial dagger – will also be carried by many observant Sikh males. Both male and female Sikhs will also choose to wear iron bangles and bracelets (the Kara) which have both religious and cultural significance.

If you are unfamiliar with the Sikh religion, you can access the video below for more information:

https://youtu.be/SZYhxdeTPts

You can also find a link to an article below about Sikhs which was originally published in The Independent:

https://www.indy100.com/article/sikhs-face-discrimination-get-mistaken-for-muslims-hardayal-singh-united-sikhs-8332796

Could this rule be an example of indirect discrimination which particularly impacts (in a very negative way) on members of the Sikh community? In terms of the Equality Act 2010, Sikhs are covered by Sections 9 (Race) and 10 (Religion). Some Sikhs may not be particularly religious (in other words non-practising), but they will be covered by the protected characteristic of Race (see Mandla v DowellLee [1982] UKHL 7).

Interestingly, as a point of reference, Judaism is also a protected characteristic in terms of Sections 9 and 10 of the Equality Act 2010.

In its defence the Welsh Amateur Boxing Association will be arguing the health and safety card as objective justification. Of the rule. In response, Singh is arguing that the English Amateur Boxing Association dropped its rule demanding that boxers be clean shaven.

It will be interesting to see how this dispute develops.

A link to the story on the BBC News website can be found below:

Boxing beard ban not fair says Cardiff University student

Cardiff student Aaron Singh says the rules in Wales are “not fair” and discriminatory.

The Equality and Human Rights Commission has also published guidance for employers and organisations about the Sikh community and its beliefs:

https://www.whatdotheyknow.com/request/288201/response/709901/attach/3/guidance%20on%20sikh%20articles%20of%20faith%20for%20scotland%20pdf.pdf

More links to stories about Sikhism and potential indirect discrimination can be found below:

https://www.telegraph.co.uk/news/religion/2469905/Sikh-teenagers-bangle-discrimination-win-will-impact-rules-on-uniforms.html

http://news.bbc.co.uk/1/hi/8500712.stm

Copyright Seán J Crossan, 8 July 2019

Tickets for “people of colour” … or the problem with positive discrimination

Photo by Ehimetalor Unuabona on Unsplash

Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019