When can positive action be used to improve gender pay statistics?

23 Jul 2019 By Nick Robertson and Clare Shears

Employers must tread carefully when attempting to address disadvantage in recruitment and promotion, say Nick Robertson and Clare Shears

The implementation of gender pay reporting has forced organisations to address the pay imbalances identified by the statistics caused, it is said, by the underrepresentation of women at the senior level. The media interest surrounding the publishing of this data often leads employers to publish plans to improve the statistics. 

The law does not provide a quick fix for how this might be done. If an employer were to promote or appoint an individual to a role because of her gender it would constitute unlawful discrimination. Special measures to alleviate disadvantage or underrepresentation owing to a person's 'protected characteristic' (positive action) are potentially lawful. 

The Equality Act 2010 contains positive action provisions that permit proportionate action that might enable or encourage a person with a protected characteristic to overcome or minimise disadvantage. Examples include leadership training or mentoring for women, and a job advertisement in a newspaper with a largely lesbian and gay readership. 

The Act also sets out when positive action is permitted in relation to recruitment and promotion. The action must be a proportionate means of overcoming the disproportionately low percentage. The people being considered must be ‘as qualified’ as each other. Finally, there must not be a ‘policy’ of favouring one protected category over other employees/applicants. 

In Furlong v Chief Constable of Cheshire Police [2018], the attempt by the police to diversify its workforce was found to have been unlawful. In this case the claimant failed when he applied to be a police constable. The police had interviewed a selection of candidates and those who passed the interview were then all deemed to be equal. In reliance on the Equality Act, the police then proceeded to offer positions to the underrepresented minorities. 

The tribunal determined that this was unlawful. It was wrong to describe all 127 candidates as being of ‘equal merit’. An assessment of the interview matrix established that the claimant had the 57th highest score. Those appointed were not ‘equal’ with the claimant and so he was unlawfully discriminated against. This decision is not being appealed. 

The English laws on discrimination are derived from the EU. The leading cases were interpreted in accordance with a 1976 directive that is no longer in force, but which enabled employers to promote equal opportunity for men and women by removing existing inequalities. In 2006, this was replaced by a directive that permits member states to adopt measures to promote the ‘full equality’ in practice between men and women. In one case, Kalanke (1995), the court accepted that the male and female candidates were ‘equally qualified’ but, when the employer had a policy of automatically selecting a woman, the court ruled that this was inappropriate.

By contrast, in Badeck (2000), the court accepted that the legislation was consistent with the directive as the tiebreaker rule was framed neutrally as between men and women. The court's interpretation of where two candidates are considered to be ‘equally qualified’ could provide some guidance to English courts in assessing the ‘equal merit’ requirement. 

In France, there have been a few attempts at implementing positive action measures, starting in 2004 with the introduction of anonymised resumes. The government then went on to enact Article L.1142-4 of the French Labor Code, which allows employers to take temporary measures to promote gender equality. In a recent decision, the Supreme Court ruled that a collective agreement allowing women to take an extra half a day off was lawful as it promoted gender equality by addressing inequalities suffered by women. 

In Germany, several positive action measures have come into effect, including: legislation that requires companies to fill, or at least to commit to filling, 30 per cent of their supervisory and management board positions with women; provisions that allow employees of the minority gender to obtain consolidated information about the pay and benefits of comparable employees of the other gender; and an Act that, implementing the 2006 directive, allows employers to adopt ‘suitable and appropriate measures’ to prevent or compensate for disadvantages arising from a protected characteristic. 

A UK employer may be keen to take a shortcut to improve their gender pay statistics, for example. But both English and European practice indicates there is no safe shortcut. Beyond the types of initiative to encourage applications for roles employers will need to ignore (say) gender in promotion/recruiting, even if it means statistics only change slowly. 

Nick Robertson is head of London employment, and Clare Shears is a paralegal, at Mayer Brown

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