Initially established shortly after Wayne made his debut for Everton, the ‘Rooney rule’ originated in American football. Following growing concerns in the US that black, Asian and minority ethnic (BAME) head coaches in the National Football League were more likely to be fired and less likely to be hired than their white counterparts; Dan Rooney (then-chair of the NFL's diversity committee) was key to introducing a policy that requires at least one BAME candidate be interviewed for senior posts. Following an 18-month pilot, the English Football League (EFL) has now adopted a similar approach.
Given the ever-increasing focus on discrimination in sport – and hot on the heels of Israel Folau's ongoing discrimination dispute with Rugby Australia – the obvious question is whether preferring a candidate based on race/ethnicity can be legally justified. The answer? Yes – but subject to various limitations.
In the context of recruitment, ‘positive action’ is permitted where those sharing a protected characteristic suffer a disadvantage linked to that characteristic, or where participation in an activity by those sharing a protected characteristic is disproportionately low. Given that there are currently only a handful of BAME first team managers within the EFL, there is a strong argument that BAME managers are disproportionately underrepresented.
However, disadvantage or underrepresentation are not the only criteria. Assuming this initial hurdle is cleared, treating a person (A) more favourably than another (B) in a recruitment exercise because A possesses a particular protected characteristic that B does not will only be justified where:
- A is as qualified to be hired as B.
- The employer does not have a blanket policy of treating those with A's protected characteristic more favourably in recruitment.
- The action taken is a proportionate means of achieving a legitimate aim.
In an employment law context, there is no requirement to engage in positive action in recruitment, but it can often arise in a ‘tie break’ situation between equally qualified candidates. That said, Championship, League 1 and League 2 clubs must comply with the EFL's rules and regulations, so non-compliance would inevitably lead to sanctions under the framework of those rules.
Unsurprisingly, there has been much debate over the introduction of the Rooney rule to the EFL. The PFA – the players' union in England and Wales – has long been vocal in highlighting the disproportionately low number of BAME players that move into coaching roles. On the other hand, various BAME ex-players have expressed concern that the rule is a token gesture and could simply be seen as a tick-box exercise (as the rule does not guarantee anything more than an interview for a post). Ultimately, the success (or otherwise) of the Rooney rule can only be measured further down the line in terms of whether there is a significant increase in successful BAME managers within EFL clubs.
In the current climate, allegations of discrimination against employers are commonplace. As such, the principle of positive action is often met with scepticism by those involved in recruitment, who fear a backlash from other candidates who are not hired following such action. Discrimination claims carry uncapped compensation in the employment tribunal, so it's crucial that employers get it right when they choose to implement positive action. To this end, it's vital that employers are fully aware of the requirements of the Equality Act 2010 and can clearly articulate their compliance with these requirements if ultimately challenged.
Fraser Vandal is a solicitor at TLT