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Commonwealth Law Bulletin

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A Decade of Change in British Discrimination Law: Positive Steps Forward?

James Hand
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Senior Lecturer, School of Law, University of Portsmouth, United Kingdom Version of record first published: 02 Sep 2008.

To cite this article: James Hand (2008): A Decade of Change in British Discrimination Law: Positive Steps Forward?, Commonwealth Law Bulletin, 34:3, 595-605 To link to this article: http://dx.doi.org/10.1080/03050710802268091

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Commonwealth Law Bulletin Vol. 34, No. 3, 595605, September 2008

A Decade of Change in British Discrimination Law: Positive Steps Forward?

Senior Lecturer, School of Law, University of Portsmouth, United Kingdom
James.Hand@port.ac.uk JamesHand 0 300000September 34 2008 & Francis Original Article Ltd 0365-0718 Francis2008 Commonwealth Law Bulletin 10.1080/03050710802268091 RCLB_A_326976.sgm Taylor and (print)/1750-5976 (online)

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The past decade has seen many developments in anti-discrimination law in Great Britain, from the implementation of the Disability Discrimination Act 1995 and the Treaty of Amsterdam 1997, to the EU framework directive for equal treatment in employment introducing three new protected grounds between 2003 and 2006 (and the subsequent extension beyond employment, in national law, of two of those grounds). All of these, and myriad implementing regulations, build on the national foundations set by the Sex Discrimination Act 1975 and the Race Relations Act 1976. With formal equality remaining the dominant model, this article looks at the scope for positive measures within British anti-discrimination law.

While UK anti-discrimination law has both endogenous and European origins, both systems have adopted formal rather than substantive equality as the dominant model. Whereas formal equality demands that people in similar circumstances should be treated equally, substantive equality covers a multitude of aims including equality of opportunities and equality of ends. Accordingly, measures taken to promote the opportunities of a group, whilst attracting lip-service commendation, have, in the past, only received the backing of the law in the most limited form as to do otherwise could infringe the principle of equal treatment. This is not the case, however, with regard to disability discrimination which is treated as a discrimination apart and as such will be dealt with later on in this article. All of the other pieces of discrimination legislation contain limited derogations from the principle of equal treatment, which thereby affords some small scope for positive discrimination, as well as containing provisions allowing for limited positive action. The effect and interpretation of these provisions have changed over time and the desire to further the interests of under-represented women has led to judicial re-writing of contracts and to the European Court of Justice suggesting that positive sex discrimination may be permissible, but only where the candidates are of equal merit and provided that there is no automatic preference for women. The legislation, while generally similar, is not always in pari materia and it is therefore necessary to look at the details of the legislation and case law: how they vary according to subject matter, and how they relate to each other. The law regarding discrimination, and with it the possibilities of positive discrimination, has been subject to much change over the last decade and the recent addition of positive duties on local authorities, while limited to race, sex and disability, raises the possibility of a contractual rather than just a tortious approach to combating discrimination. There is now legislation on discrimination covering sex (including gender re-assignment and marital status), colour and nationality, racial or ethnic origin, disability, religion or belief,

03050718 print/17505976 online/08/03059511 2008 Commonwealth Secretariat DOI: 10.1080/03050710802268091


James Hand

sexual orientation and age.1 All of these require employers to abstain from direct discrimination characterized by less favourable treatment (e.g. s.1(2)(a) of the Sex Discrimination Act 1975) and to refrain from applying conditions which have an adverse impact upon a protected group (e.g. s.1(2)(b) SDA). Most of these, but not all, go beyond the employmentrelated sphere and cover the provision of, broadly speaking, goods and services as well.2 All this is now further combined with a soft-law commitment to prohibit discrimination on grounds of social origin, genetic features, language, opinion (political or otherwise), membership of a national minority, property and birth as laid down in Article 21 of the EU Charter of Fundamental Rights.3

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EC and national discrimination laws have traditionally been expressed first and foremost through the notion of formal equality before the law,4 and have had as an aim the discouragement of the treating of people according to stereotype. It could be said that the law focused on de jure and de facto less favourable treatment (that is, direct and indirect discrimination) rather than looking at the end result. This being the case, there appears to be little scope for positive discrimination (outside of the disability provisions), as one persons more favourable treatment must lead to the less favourable treatment of another. This is particularly so as a benevolent motive or the lack of intention to discriminate against a group is irrelevant, as held by the House of Lords in James v Eastleigh Borough Council,5 where free admittance for women over 60 fell foul of the definition in s.1(1)(a) of the Sex Discrimination Act 1975 as men had to wait until they were 65.6 At the European level, an automatic arbitrary preference for women candidates over equally qualified male candidates, in sectors where women were under-represented, was held to be discriminatory in the first positive discrimination case to be considered by the Court of Justice.7 In the light of this it is not surprising that positive measures in discrimination legislation have been somewhat limited. While there are some positive discrimination provisions in the Sex Discrimination Act and the Disability Discrimination Act (see below), all the acts and regulations contain limited derogations from the principle of equal treatment by way of a defence.

4 5 6

Sex Discrimination Act 1975 (as amended) (SDA 75); Race Relations Act 1976 (as amended) (RRA 76); Disability Discrimination Act 1995 (as amended) (DDA 95); and the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661, and the Employment Equality (Age) Regulations 2006, SI 2006/1031, implementing Council Directive 2000/78/EC. The SDA, RRA and DDA have since their inception, and the Equality Act 2006, Pt 2 extends the Religion or Belief Regs to cover goods and services, etc. while Pt 3 of the Act provided for regulations to be made with regard to sexual orientation (The Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263, in force since 30 April 2007). The charter will gain treaty-equivalent status, through an amendment to Article 6 of the Treaty on European Union, once the Treaty of Lisbon is ratified by all member states (this is expected during 2008). However, it does not create new general rights in national law and, furthermore, for the avoidance of doubt a special protocol applying to the UK and Poland explicitly states the treaty will not extend the powers of any court nor will it create any new justiciable rights in the UK. Fredman, S. (2001) Equality: a new generation?, ILJ, 30(2), pp. 14568 at p. 154. [1990] 2 AC 751. Age could prove to be an exception here as the Age Regulations 2006 allow for justification of both direct as well as indirect discrimination. It is thought unlikely that this is intended to allow for positive discrimination and examples in the regulations which suggested that it might were removed from later drafts. Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] IRLR 660.

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Positive Discrimination by Way of Defence: Sex, Race, Religion, Sexuality, Age

Employers may have, in restricted circumstances, a defence if they make appointments based on sex, race, religion, sexuality or age, thus implicitly permitting some positive discrimination. The Sex Discrimination Act 1975, the Race Relations Act 1976 and the three Employment Equality Regulations all permit exceptions based on genuine occupational qualifications (GOQs) or genuine and determining occupational requirements (GORs). The Sex Discrimination Act and the Race Relations Act (but, in the latters case, only with regard to discrimination on grounds of colour or nationality) expressly detail the instances, in sections 7 and 5 respectively, which amount to genuine occupational qualifications (e.g. authenticity, the most effective provision of personal services promoting welfare and, with regard to sex, decency). The three Employment Equality regulations, along with employment-related discrimination on grounds of race and racial and ethnic origin, apply a single test of a proportionate, genuine and determining occupational requirements (in regs 7, 7 and 8 of the Religion or Belief, Sexual Orientation and Age Regulations and s.4A of the Race Relations Act). However, the Court of Appeal in Lambeth LBC v Commission for Racial Equality8 counselled against taking the GOQ in section 5(2)(d) of the Race Relations Act concerning the most effective provision of personal services promoting welfare as allowing for positive discrimination. Its location amongst other GOQs rather than it being grouped together with sections 35, 37 and 38, the sections which allow for limited acts of positive discrimination, meant that it was not intended to provide for positive action.9 Nevertheless, section 29(2) of the Race Relations Act provides that a discriminatory advertisement will not be illegal if the act is made lawful by other sections, and here sections 5 and 35 to 38 are grouped together. Furthermore, Balcombe LJ stressed that he was expressing no opinion about positive action as a means of combating the effects of past discrimination but was confining his attention to the present meaning of the Act of 1976.10 Nevertheless, these defences are based on the needs of the particular job a headteacher of a Catholic school, for example, may be required to be a practising Catholic (see Reg. 7(3) of the Religion or Belief Regulations) rather than any abstract aim to promote under-represented groups.

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Provisions for Positive Discrimination and Positive Action

Quotas for under-represented groups being a tool of substantive rather than formal equality have not been promoted by the legislature or favoured by the courts. A notable exception to this is section 42A of the Sex Discrimination Act 1975, inserted by the Sex Discrimination (Election Candidates) Act 2002 following a tribunals finding that womenonly short lists were discriminatory.11 This flagrant piece of positive discrimination given statutory force specifically excludes from the prohibition of discrimination any arrangements made by political parties in the selection of candidates which have the purpose of reducing the inequality in the numbers of men and women elected to the relevant governmental
8 9 10 11 [1990] ICR 768. Ibid., per Balcombe LJ at 774. Ibid., at 774. Jepson and Dyas-Elliot v Labour Party [1996] IRLR 116.


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assemblies (e.g. the UK, Scottish and European Parliaments, Welsh Assembly and local councils). It should be noted, however, that the Act was passed with a sunset clause and the provisions are due to lapse in 2015. This is an exception to the rule and by no means signifies a wider trend to permit positive discrimination.12 By contrast limited forms of positive action, short of actual appointments or promotions, are provided for in discrimination legislation. Sections 47 and 48 of the Sex Discrimination Act are phrased as exceptions which allow certain bodies and employers, respectively, to discriminate in favour of one sex with regard to both the provision of training and in their encouragement of the uptake of opportunities (e.g. encouraging applications from under-represented groups). The circumstances where this is allowed, however, is limited to situations where, in the preceding 12 months, there were no persons of the sex in question doing such work (either in the UK under section 47 or within that employment under section 48) or that the number of such persons was comparatively small. The Race Relations Act 1976 contains parallel provisions in sections 37 and 38. The Sex Discrimination Act, in section 47(3), also specifically provides for those who are in special need of training by reason of their having been out of regular full-time employment due to their discharging domestic or family responsibilities. Here, there is no need for there to be any under-representation, but there is no comparable provision in section 48 concerning acts by employers and section 47(4) expressly excludes the provisions in section 47 from applying to discrimination against applicants and employees. Although these provisions appear to be very restrictive, they can be used to good effect. A case study published in 2004,13 concerning a women-only personal development and leadership course offered by a council, found that the course was very useful to individual women but that its structural effect was ambiguous, not least because of the perceived lack of kudos of a single-sex course. However, the individual successes led to the establishment of similar courses for black and disabled employees. These fractured the glass ceiling to the extent that, within six years, a single diploma was open to all employees and the level of women principal officers had increased by approximately 50 percent.14 In a step forward, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006 do not directly parallel the provisions of sections 47 and 48 of the Sex Discrimination Act 1975. Regulations 25, 26 and 29, respectively, do provide for positive action, as with the sex and race legislation, regarding the provision of training and the encouragement of the taking up of opportunities, but in much wider circumstances. The limitation is only, in the case of the Religion or Belief Regulations, that it must reasonably [appear] to the person doing the act that it prevents or compensates for disadvantages linked to religion or belief suffered by persons of that religion or belief doing that work or likely to take up that work. The same applies mutatis mutandis to the other regulations. The absence of a requirement of under-representation in the past year, and the introduction of the apparently subjective test of reasonable assumption of compensation, make the

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12 A provision in the draft European Constitution regarding the selection of Commissioners that all member states should put forward three candidates and that within that nomination both genders must be represented was dropped from the final text (Bell, M. (2004) Equality and the European Union Constitution, ILJ, 33(3), pp. 242260 at 244). 13 Anderson, V. (2004) Women managers: does positive action training make a difference? A case study, JMD, 23(8), pp. 72940. 14 Ibid., pp. 731 and 738 (33 percent of principal officers were women at the start of the program, rising to 47.4 percent by 2003).

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provisions have much wider applicability. The originating directive, Council Directive 2000/ 78/EC, and Article 141 of the Treaty of Rome, however, arguably provide room to go even further.

The European Influence

The absence of a requirement of under-representation in the Religion and Belief, Sexual Orientation and Age Regulations (as opposed to the provisions in the Sex Discrimination Act and Race Relations Act) reflects both their novelty and their European origin. Other European-inspired changes include the new definition of indirect discrimination (using the phrase provision, criterion or practice rather than requirement or condition, and requiring a particular disadvantage) and changing the burden of proof. These are present in all three regulations and the amended Sex Discrimination and Race Relations Acts. While both increase the protection against discrimination, there is the corollary that positive action may thus be more likely to fall foul of the new wider anti-discrimination provisions; the new definition of indirect discrimination risks bringing positive practices into its reach which would not be the case with the narrower requirement or condition and the lower burden of proof could place the onus on the defendant to show that they were not unlawfully positively discriminating. This latter point came up in Barnfield College v Ms W Arnold15 in which the common law predecessor of the statutory change in the burden of proof was used by the first instance tribunal in deciding that the existence of a policy to try and attract more ethnic minorities16 was a fact sufficient to discharge the complainants burden. The Employment Appeal Tribunal, however, accepted Counsel for Barnfield Colleges submission that this was a quite insufficient basis to conclude that there was discrimination on the grounds of race.17 Nevertheless, once the complainant proves facts that make out a prima facie case, the burden must now shift to the defendant. For many years, the main EC provisions were Article 141 (ex 119) of the EC Treaty and the Equal Treatment Directive (76/207/EC). The original wording of what was then Article 119 of the Treaty of Rome did not provide for positive measures, but the Equal Treatment Directive included, within Article 2(4), a derogation providing that the Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect womens opportunities. The Treaty of Amsterdam 1997 introduced into the EC Treaty a provision expressly permitting positive measures, using stronger language than that used in the directive. Thus the new Article 141(4) provides that the principle of equal treatment shall not prevent the provision of specific advantages regarding the pursuit of vocational activities or providing compensation for disadvantages for the under-represented sex, and is prefaced [w]ith a view to ensuring full equality in practice between men and women in working life. Similar wording is used in the new Race and Employment Directives18 but, while modelled on Article 141EC, they do not expressly permit the adoption of measures providing specific advantages but merely the adoption of specific

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15 16 17 18

Appeal No. UKEAT/0544. King v The Great BritainChina Centre [1991] IRLR 513, quoted at para 59. Ibid., at para 62. 2000/43/EC and 2000/78/EC.


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measures.19 Furthermore, general results-oriented positive discrimination has implicitly not been given wide application by the Employment Directive. Indeed, the Directive contains two express derogations, namely Articles 5 and 15, which specifically allow for result-oriented positive discrimination with regard to the disabled and sectors in Northern Ireland respectively. The amended Equal Treatment Directive,20 with regard to sex, on the other hand, does refer directly to Article 141(4). Nevertheless, all of the European legislation can be seen to allow for more than just discrimination in training and in the encouragement of the seizing of opportunities.

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ECJ Judgements: The Scope for Interpretation

Despite the apparently permissive wording of the EC legislation particularly as regards sex the case law of the ECJ shows a deep reluctance to depart too far from the principle of equal treatment, while allowing considerable elasticity within this boundary. Thus while automaticity in appointments and promotion is out, an element of automatic preference combined with a potentially overriding objective assessment is permissible.21 This less than clear position is to some extent due to the fact that the Court of Justice does not endorse any particular theory of equality [i]t does not seek to advance a particular idea of the social good.22 In the case of Kalanke, the ECJ considered that Article 2(4) of the Equal Treatment Directive was a derogation from the principle of equal treatment (rather than an exercise in substantive equality) and, as such, it had to be construed narrowly. Therefore, guaranteeing women absolute and unconditional priority over equally qualified short-listed men in sectors where women were under-represented went beyond the promotion of equal opportunities and exceeded the boundaries of Article 2(4). The Advocate General in the subsequent case of Marschall took an even more restrictive line. He held that the introduction of an examination of individual circumstances as part of the measure, which would thus prevent the preference from applying automatically, would not prevent it from breaching the Equal Treatment Directive. The Court, however, held that such an Offnungsklausel was legitimate, whilst confirming that a guarantee of absolute and unconditional priority for women would fall outside the derogation in Article 2(4). The Court held that, as there is a general tendency for equally qualified male candidates to be promoted in preference to female candidates because of prejudices concerning the capacities of women in working life,23 a rule that counteracts the effect of this prejudice would reduce actual instances of inequality which may exist in the real world24 and thus fall within the Equal Treatment Directive. While this judgment, in its consideration of the

19 Art. 5 of 2000/43/EC and Art. 7 of 2000/78/EC: see further Waddington, L. and Bell, M. (2003) Reflecting on inequalities in European equality law, E.L. Rev., 28(3), pp. 34969; Caruso, D. (2002) Limits of the classic method: positive action in the European Union after the new equality directives, Jean Monnet Working Paper 10/02. 20 2002/73/EC amending Council Directive 76/207/EEC. 21 Marschall v Land Nordrhein-Westafalen (C-409/95) [1998] IRLR 39; Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] ECR I-3051 22 Tridimas, T. (1997) The application of the principle of equality to community measures, in: A. Dashwood and S. OLeary (Eds) The Principle Of Equal Treatment In E.C. Law (London: Sweet & Maxwell), 214 at 215, cited by Caruso, op. cit., n 19, p. 23. 23 Marschall v Land Nordrhein-Westafalen, at para 29. 24 Ibid., at para 31.

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real world, is closer to the then embryonic Article 141(4)EC,25 it raises the apparently problematic construct of how an objective assessment of all criteria specific to individual candidates can tilt the balance in the favour of one equally qualified candidate over another. If qualification is different here from criteria (which logically it must be), the scope of this device could depend on the whim of the individual employer or whosoever defines the qualificatory and other criteria. The ECJ in the case of Badeck26 followed the permissive approach in Marschall when considering a range of provisions in Hessen state law. One of the issues concerned a rule which gave female candidates priority over equally qualified male candidates in sectors of the public service where women are under-represented but only if necessary so as to comply with binding targets in the womens advancement plan and if no reasons of greater legal weight applied. The law laid down what criteria should be used in the selection process, including experience acquired in the home so far as it is of importance for the suitability, performance and capability of candidates. Barnard and Hepple contrast this with the criteria of seniority, age and date of last promotion (all of which could be said, in the current climate, to favour men) which should be taken into account only in so far as they were of importance to the job.27 The choice of criteria leads here to an equality that is substantive rather than formal and it is apparent that some indirect discrimination against men is being allowed.28 The Hessen law was held not to be absolute and unconditional in the Kalanke sense, not least because of the reasons of greater legal weight which provide for five groups including those returning to work after a family-oriented break, the long-term unemployed, former volunteer soldiers and the disabled to take precedence. A further issue in Badeck concerned binding targets for temporary academic posts and academic assistant posts under which the proportion of women had to at least equal the percentage of women graduates and students in each discipline. This, as was argued on behalf of Herr Badeck, comes close to equality of results as opposed to an attempt to remove obstacles to achieving equality. Furthermore, the attorney for Hessen was concerned by the absence of a link to a specific disadvantage encountered by women in their working and social lives. The permissive approach of the Court, however, led it to point to the absence of any absolute ceiling and hold that the reference to those who have received appropriate training amounts to the using of an actual fact as a quantitative criterion for giving preference to women and is thus unobjectionable.29 Kalanke and Marschall pre-date the new Article 141(4)EC and Badeck was decided without having to rule on its interpretation as the Court managed to bring the provisions in question within the Equal Treatment Directive. The case of Abrahamsson30 did involve a consideration of the new, wider, Article and yet represents a retrograde step. In that case, the substantive equality within Badeck was approved, but it was emphasized that the criteria
25 The paragraph starts With a view to ensuring full equality in practice 26 Badeck v Hessischer Ministerprsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen (Case C-158/97) [2000] ECR I-1875. 27 Barnard, C. and Hepple, B. (2000) Substantive equality, Cambridge Law Journal, 59(3), pp. 56285 at 578. Cf. Badeck v Hessischer, para 31: acquired by carrying out family work are to be taken into account in so far as they are of importance for the suitability, performance and capability of candidates, whereas seniority, age and the date of last promotion are to be taken into account only in so far as they are of importance in that respect. 28 Badeck v Hessischer, para 32; cf. Barnard and Hepple, op. cit., n 27, p. 578 however, it should be noted that the legitimacy of the criteria was not challenged in the main proceedings (which concerned the preference given to women if male and female candidates are equally qualified). 29 Badeck v Hessischer, paras 4043. 30 Abrahamsson et al. v Fogelqvist (C-407/98) [2000] ECR I-5539; [2000] IRLR 732.

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(which should be neutral as regards sex but may, in general effect, favour women) must be clear and unambiguous. That was not the case regarding a Swedish regulation that gave preference to women in appointments for higher education teaching posts. Moreover, the preference was automatic there was no Marschall objective assessment and as such it fell outside Article 2(4) of the ETD. The ECJ considered that the scope within Article 141(4) for states to adopt measures intended to compensate for disadvantages in professional careers could not be read to allow a selection method of the kind at issue which appears, on any view, to be disproportionate to the aim pursued.31 By contrast, the ECJ in the Dutch case of Lommers32 upheld a scheme that provided a limited number of subsidized nursery places to staff, and was only open to female employees save for in an emergency, as being within Article 2(4) as it removed an obstacle (the insufficiency of affordable childcare facilities) to womens employment opportunities. It could only come within the discretion of the Article, however, through the use of extreme interpretation or actual judicial re-writing. To avoid a breach of the principle of equal treatment, the Court construed the exception in favour of male employees that they could have access in an emergency as including a requirement that male single parents should be dealt with on the same basis as their female colleagues. A generous and positive step to have taken but, as was commented at the time, hardly the most principled approach to the matter.33 These cases do not give a clear picture, but it may be stated that carefully drafted policies that tip the balance in favour of the under-represented sex may be upheld by the courts; and that, in spite of Abrahamsson and Briheche, this is more likely where reliance is placed on Article 141(4), and the amended Equal Treatment Directive, than with the previous provisions provided that the policy is not disproportionate. How the provisions relating to race, religion, sexuality and age are interpreted is, at this stage, a matter for conjecture. Their restriction to specific measures does not rule out a Marschall or Lommers style approach since these cases were decided with reference to earlier narrower provisions; but the similarity between the language used in Article 141(4) and the Race and Employment Equality Directives only heightens the contrast between them when it comes to the positive action provisions with specific advantages allowed for sex but only specific measures for race, religion, sexuality and age.

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Disability A Discrimination Apart

European disability discrimination laws became justiciable throughout the union, as regards employment, from December 2006.34 The basis for these provisions is the Disability Discrimination Act 1995 which, with some amendment, had been in operation for a decade. Accordingly, both the European directive and the existing national law treat disability discrimination as a discrimination apart, to some extent ignoring the usual model of direct and indirect discrimination and imposing obligations rather than just prohibiting certain acts. Why should this be so? In the words of Baroness Hale in Archibald v Fife Council,35 men and women or black and white, as the case may be, are opposite sides of the same coin. Each is
31 32 33 34 35 Ibid., para 55; followed in Briheche v Ministre de LInterieur & Others (Case C-319/03) [2005] 1 CMLR 4. Lommers v Minister Van Landbouw Natuurbeheer En Visserij [2002] IRLR 430. (2002) Positive discrimination, Disc Law 2002.9 A1 [668]. Employment Equality Directive (2000/78/EC) Art. 18. [2004] UKHL 32, para 47.

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to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men, and the same can be said for sexuality, religion or belief and age although with regard to these, as well as with race, the coin may have to be multi-faceted. Furthermore, the disadvantage that all these groups may face stems from external prejudice, albeit possibly unwitting, rather than also from an actual inability or internal hindrance. Being a Jew, a Muslim or a transsexual is generally irrelevant for most jobs (or the procurement of goods and services) but the blind, deaf or crippled are likely to require some adjustments (e.g. Braille materials or wheelchair access) before they can do the job.

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Both the Directive and the Act expressly provide for positive action in unparalleled terms. The original section 6 of the Act required employers to make reasonable adjustments where an arrangement placed a disabled person at a substantial disadvantage. Here, the law is not merely making limited positive action a choice for an employer but a positive obligation so far as is reasonable. The case of Archibald v Fife Council36 was hailed as having far-reaching consequences in that it placed a duty on employers to discriminate positively in favour of the disabled.37 However, as was pointed out at the time,38 the decision easily fell within section 6(3) of the Act. While the court did refuse to adopt a restrictive approach, it was not an example of ground-breaking judicial activism. Furthermore, in Bruce v Chamberlain & Anor,39 Wall LJ declined to let a liberal interpretation of Archibald (which concerned a substantially disadvantaged current employee) influence his decision in a case involving a disabled applicant who was arguing that the nondisability related job specification should be adjusted because of his disability. Generalized disadvantage is not enough: the particular situation of the disabled person must meet the criteria laid down in the Act.40 The Directive provides for similar positive accommodation, and so, while section 6 of the Act was repealed as of October 2004, the new section 4A retains much of the original language (but with provision, criterion or practice replacing arrangement to bring it into line).

Positive Duties: Three Grounds, One Sector

A recent innovation with regard to disability, sex and race but not the other grounds has been the imposition of a positive duty upon public authorities to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity (s 71 RRA, s 49A DDA, s 76A SDA). As with those considered above, these provisions are not identical but are highly similar. Each imposes the general positive duty together with specific duties which should help the authorities meet their general duty; each, by way of a specific duty, requires most authorities to publish equality schemes which, inter alia, show how the authorities go about monitoring their activities for any adverse impact on the protected groups; and each requires the authorities to undertake monitoring of the workforces with regard to numbers of staff and applicants for employment or promotion. However, only the RRA includes the promotion of good relations alongside the promotion of equality of
36 [2004] UKHL 32. 37 Linden, T. and Wong, G. (2004) Positive discrimination: the impact of Archibald, NLJ 154 1173. 38 Hughes, P. (2004) Disability discrimination two recent judgments: Part 1, Emp. L.B., 62(October), pp. 25 at 4; see also Linden and Wong, op. cit., n 37. 39 [2004] EWCA Civ 1047. 40 Bruce v Chamberlain & Anor [2004] EWCA Civ 1047 at para 31.


James Hand

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opportunity; only the RRA lists, at length in Schedule 1A, the authorities who are under the general duty, whereas the DDA and SDA merely provide a non-comprehensive definition stating that the provisions apply to any person certain of whose functions are of a public nature but subject to certain exclusions (e.g. Parliament and the security services); and it is only the DDA that includes within the general duty the potential need to treat some persons more favourably than other persons (s 49A(1)(d)). While the Disability Rights Commission, in their Code of Practice The Duty to Promote Disability Equality (2005), plays down the difference between the RRA and the DDA with regard to the definition of public authorities stating that all bodies listed in the RRA will also be public authorities for the DDA they insist elsewhere that the Disability Equality Scheme must be clearly identifiable and that the duty is unlikely to be effectively met if subsumed within a combined equality scheme.41 It can be seen, therefore, that these positive duties help to promote equality by reinforcing the underlying law and thus do not, save for the exception of the DDA, promote positive discrimination. Bennett et al. consider the imposition of the first positive duty, for race, to be a form of positive action, but clearly not positive discrimination42 and the same applies by analogy to the later duty for sex (in force since April 2007). Whilst a form of positive action in their own right, the duties also support the positive action provisions by requiring the collection and publication of data which could help show the requisite under-representation (e.g. sections 47 and 48 SDA). They also raise the prospect of contracts being used as tools in the elimination of discrimination stretching outside the public sector. While the positive duties are only imposed on public authorities howsoever defined the public authorities may consider that, having regard to the need to eliminate unlawful discrimination, they need to incorporate similar duties in their contracts with outsiders. Furthermore, equality could be included among the criteria when considering with whom to contract. This contract compliance has previously been little used in the UK but is one of the most significant methods of antidiscrimination law in the US. The best value regime, which requires public bodies to exclude non-commercial matters when considering entering into contracts and which could thus be a bar to contractual compliance, has been amended so that some account can be given to the new duties.43 When the government announced three pilot schemes to test ways of strengthening race equality in government procurement contracts, a leading business commentator headed a column Why positive discrimination is not the way forward and warned against equality of outcomes imposed by diktat as opposed to equality of opportunity.44 However, in requiring suppliers to comply with policies on harassment, equality and diversity training, and to report the make-up of the workforce, the government is doing no more than implementing section 71 RRA in its own departments; indeed, the body behind the pilot schemes the Ethnic Minority Employment Task Force clearly states they do not include setting quotas or any positive discrimination measures.45
41 Disability Rights Commission (2006) Doing the Duty: An Overview of the Disability Equality Duty for the Public Sector, p. 23. 42 Bennett, M. et al. (2005) Positive discrimination the way forward, International Journal of Discrimination Law, 6(3), 22349 at 227. 43 Local Government Act 1988, s 18 as amended by the Race Relations (Amendment) Act 2000, sch 2, para 20. 44 Lea, R. (2006) Personal view: why positive discrimination is not the way forward, The Daily Telegraph (London), 14 August 2006, City, p. 2. 45 EMETF Press Release Public Procurement Pilots. Available at: http://www.emetaskforce.gov.uk/ reports.asp. Accessed 3 April 2008.

Change in British Discrimination Law


Changes to discrimination law over the last ten years have seen the protected grounds multiply, new definitions introduced and the introduction of positive duties. Positive discrimination, however, has not been a feature of the reforms (with the exception of disability and, with regard to electoral candidacy, sex). Instead, the legislative focus has been on strengthening the anti-discriminatory provisions but in doing so not always using the same terms for each ground or, as in the case of the positive duties, not applying it across the board.

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The European Court of Justice has accepted some form of positive discrimination but only in very limited circumstances and only, as yet, with regard to sex. In what appears to be a multi-tiered hierarchy, discrimination on the grounds of genetic features and opinion, among others, are by contrast only subject to a commitment with no hard national law underpinning it. Within the next ten years a single Equality Act is expected to be in operation and it will be interesting to see whether the disparities between the grounds will remain and how far the preference for formal equality will be maintained.
James Hand is an Associate Senior Lecturer at the School of Law, University of Portsmouth, UK. He holds a BA (Hons), PgDL, PgDip (Leg. Prac.), LLM (Dist). He is grateful to Adele Sinclair, formerly Principal Lecturer, for her comments on an earlier draft. Email: James.Hand @port.ac.uk.