Springhouse’s senior partner, Ben Power was recently asked to write for The Brief, the daily newsletter on all things legal from The Times. His analysis of how the law relating to positive discrimination needed to change after Brexit was published on 25 June 2018, under the headline: “Ditching EU rights law could be good for women“. The full article is reproduced below.

Attempts to improve the gender balance in workplaces are hindered by a strict prohibition on sex discrimination, writes Ben Power.

In the febrile atmosphere immediately following the Brexit vote, shell-shocked commentators working up an Armageddon narrative suggested that one of the consequences could be a wholesale repeal of employment and equality protections introduced into the UK as a result of European law. So persistent was the chatter that, during the general election campaign in May 2017, Theresa May explicitly promised to keep all workers’ rights guaranteed by EU law.

But while the bosses and the unions may never agree on the merits (or otherwise) of certain EU workplace regulation, there is at least one area where greater flexibility for parliament after Brexit might be welcomed by those on both sides: positive discrimination.

While positive discrimination sounds like something good to the lay observer, this type of discrimination is currently, in the eyes of the law, as unlawful as the nastiest cases of discrimination. The Court of Justice of the EU has rigorously limited the scope for positive discrimination, ruling in the case of Kalanke, for example, that a policy of automatically giving an equally qualified woman priority for a position over a man in an area where women were underrepresented was unlawful discrimination.

If the UK had the flexibility to retreat from this strict position and beef up the fairly limp affirmative action provisions found in the Equality Act 2010, employers may finally be able to tackle a lack of diversity in their organisations at more than a glacial pace.

Both the UK’s commercial businesses and public sector bodies are under pressure from the government to improve inclusion of underrepresented groups. But going too far risks straying into the territory of unlawful discrimination. Pressure to improve and meet targets has led to issues for some public sector bodies in the past, for example a police force being investigated by an equality body for rejecting applications from white males on the basis of “overrepresentation”.

The positive action provisions in the Equality Act 2010 are entirely voluntary for employers. So, while, a rejected ethnic minority candidate cannot bring a claim for a failure to invoke the provisions, a candidate rejected because those same provisions were relied on by the employer can bring a direct discrimination claim. Even if an employer relies on the provisions, there are fairly complex hurdles to overcome and the need for proportionality means employers will never have absolute certainty that they are doing the right thing until a tribunal has considered the case.

It took the Sex Discrimination (Election Candidates) Act 2002 to allow legitimate all-women shortlists after an employment tribunal ruled that their use by the Labour Party in its selection of candidates for the 1997 general election was a breach of the Sex Discrimination Act 1975. It remains to be seen if this domestic precedent can be followed in a post-Brexit world.