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Lawyers question impact of gender equality plans

13 December 2010

Employment lawyers have questioned the impact of the government’s decision to press ahead with ‘positive action’ to improve the recruitment of women and minority groups, while opting for a voluntary approach to gender pay reporting.

Lynne Featherstone, the Liberal Democrat MP and equalities minister, said the ‘positive action’ provisions of the Equality Act 2010 would allow employers to give priority to candidates from under-represented groups.

The bulk of the Act was implemented in the autumn, but the more controversial measures, such as positive action or the ‘socio-economic’ duty, were postponed (see, 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 a similar 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 said 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 the measures meant that employers should look at candidates in the round or assess 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.

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 do, 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.”

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