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Positive Action as a Tool in Promoting Access to Employment

31 March 2006

Erika Szyszczak 1

Since the signing of the Treaty of Amsterdam in 1997, EU law has provided a number of opportunities to increase employment and social law protection. This has taken place against a backdrop of creating a Constitution for the EU where ideas of citizenship and fundamental rights play an increasingly important role. The Constitution goes further in creating a set of values which are shared within the EU. Of significance is Article I-2:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance and justice, solidarity and equality between men and women must prevail.”

The EU Constitution has yet to be ratified but it remains a powerful document of the vision the EU has of its own future.

The European Court of Justice, the supreme arbiter of EU law and a central political actor in the institutional framework of the EU, has also taken on board citizenship and fundamental rights issues in its judgments. Since 1997 the EU has adopted a raft of measures which tackle antidiscrimination, using ideas of citizenship and fundamental rights to add greater weight, and a constitutional quality to this area of law.

The significance of these developments lies in the fact that a common constitutional framework for the EU is being mapped out. The use of EU law in national courts and tribunals is a particularly useful way of overcoming limitations and lacunae in national law, and of creating new opportunities for legal concepts and ideas. EU law also provides a useful political process to campaign for change at the national level, using examples of best practice drawn from other Member States. One significant contribution of this new phase of EU law for Roma rights is the endorsement of the use of positive action in the new legislative measures.

What Is Positive Action?

Positive action refers to a broad spectrum of policies and programmes which are aimed at targeted groups in order to redress inequalities which result from discriminatory practices, or the position of certain groups in a given society. The concept is sometimes called affirmative action. It should be distinguished from positive discrimination where certain individuals or groups are given preferential rights, for example, a fixed quota of posts is reserved for them, and also from reverse discrimination, where members of a dominant group or class are actively discriminated against in order to secure a more diverse workforce, education cohort or political composition of a public body or agency. In some countries, South Africa, for instance, the use of what is termed affirmative action, is found as a Constitutional idea. Positive action policies may be used to change the composition of institutions and bodies, for example, to achieve a higher representation of female members of Parliament, or more women as company directors, or more judges drawn from ethnic minorities. As a legal tool it has enormous value in being able to tackle what is sometimes described as multiple discrimination. This is where one particular characteristic, for example, sex, or race, or age cannot be pinpointed as leading to a particular act of discrimination, but where belonging to a particular group, or social class in society perpetuates the perceived role of that group in society. The policy may also be used to change the composition of educational establishments and the labour force of a particular sector or workplace. France, for example, uses positive action as part of a broader social policy programme, by giving preferential treatment to women who have been at home looking after children instead of participating in the paid labour market. By and large such policies are usually introduced into the public sector with the idea that acceptance here will lead to a trickle down effect into the private sector. The use of positive action in the public sector is also closely linked to a second aim of positive action: to increase the representation of particular groups in public life.

Positive action has proved to be problematic from many angles. Members of the targeted group are often reluctant to take up appointments based upon a positive action strategy. Ideas of winning a job, or a political position, on merit and criticisms of tokenism are two central reasons for this reluctance to embrace positive action programmes. Positive action, as a legal and constitutional idea, is also fraught with difficulties over the use of appropriate language. Ideas of “disadvantaged” groups, or groups who have been “discriminated” against or “victims” of social and political discrimination can, arguably, seek to perpetuate stereotypes of such groups. From the legal perspective positive action programmes are frequently attacked by individuals who feel discriminated against where positive action results in a candidate from a protected group obtaining a job, or a place in an educational programme, or a seat in parliament, when the alleged victim feels he/she is equally as well placed, or even better qualified, to take up such an opportunity. Similarly, it is argued that positive action results in too much interference with individual liberty. Thus, positive action programmes have come under attack as misplaced ideas of social engineering.

A major weakness of such programmes is whether, at the end of the day, they do achieve results. Discussion of positive action programmes in India, for example, has argued that positive action helped those individuals who were already socially mobile, with a thin layer of financial and social resources.

The most tangible evidence of the success of positive action is seen in the political arena. Countries that have succeeded in raising levels of women’s representation in parliaments beyond minimal levels have almost invariably used some form of positive action. Success in one State often leads to the adoption of positive action in other States which want to change the gender composition of national parliaments. Under such systems, women are in effect assured election to the legislature, either through quotas in electoral law or quotas in the selection procedures of political parties. Use of such systems began on a voluntary basis in the Nordic countries in the 1970s, and has since spread widely throughout the world. For example, the African National Congress adopted a quota system for South Africa’s first democratic elections in 1994, whilst an electoral law adopted in Argentina in 1991 required 30 per cent of candidates for the legislature to be women. In the UK the use of women only short lists for candidates was found to be contrary to the Sex Discrimination Act 1975, necessitating a change in the law in The Sex Discrimination (Election Candidates) Act which was adopted in February 2002.

Assessing outcomes of positive action is indeed hard to quantify. It relies upon monitoring and statistical evidence for tangible evidence of success. Such methodology fails to quantify how positive action may encourage members of a protected group to think about applying for different posts, or jobs, or educational courses, even if they are not immediately successful. It fails also to quantify how a particular mind set, particularly of those in political power, or holding economic power, for example employers, change attitudes. This last point is in fact the starting point for a forward looking view of positive action. Modern ideas of positive action see it not as a backwardlooking tool, to redress past and current discrimination, or to provide compensation for past injustice, but as a forward looking tool to plan a society where the constitutional ideas and values of pluralism, found in the EU, are recognised: to build a society based upon diversity. This note looks at the way in which positive action is used in the European Community law and explains the legal basis for positive action measures in the United Kingdom as an example of the kind of methods which can be used to introduce positive action into domestic policies.

Positive Action in EU Law

Positive action was acknowledged in one of the earliest pieces of sex discrimination legislation, Council Directive 76/207 EC. It was a limited acknowledgement that some Member States used positive action and the Directive protected measures taken by Member States which promoted equal opportunity for men and women, in particular by removing existing inequalities which affected women’s opportunities in relation to employment, training, promotion, working conditions and to a limited extent, social security. This was seen as a derogation from a fundamental concept of European Community law, namely, the principle of equality, and it was interpreted in a narrow way by the Court of Justice.

A change was seen in the Treaty of Amsterdam where the equal pay provision, Article 141 EC, was amended to permit positive action measures for the under-represented sex, to pursue vocational activities or prevent or compensate for disadvantage in professional careers. Article 13 EC provided a legal base for a wider raft of anti-discrimination measures and in 2000 two new Directives were adopted, Directive 2000/43 and 2000/78, addressing equal treatment issues in racial and ethnic origin and in employment and occupation matters generally. Significantly, both Directives permit positive action to be used. A criticism of the EU legislation is that it does not compel Member States to use positive action, although it is arguable that in order to meet the overriding obligation to secure equality Member States should, in certain circumstances, where women and ethnic groups are under-represented in particular positions or segments of the labour market, have a duty to use positive action to secure results.
 

The Use of Positive Action in the United Kingdom

Discrimination law is one area where the crossfertilisation of ideas from different jurisdictions may have a considerable impact. UK anti-discrimination law has tended, until recently, to have been influenced by developments in the US. Instead of developing from a constitutional basis or a charter of fundamental rights or even civil liberties ideas, anti-discrimination law has grown from a narrow employment-related context to embrace a wide range of areas. This narrow approach was criticised in the past, and indeed ideas of civil liberties were negligible, but it has allowed anti-discrimination law to develop in a pragmatic and practical way, exposing weaknesses and strengths of the particular model of discrimination. Many of the ideas and concepts which form the basis of anti-discrimination law have emerged from litigation and this has involved test case litigation to clarify concepts and push forward new ideas. Now UK anti-discrimination policy is dominated by the change in pace of EU legislation. It may, therefore, provide a useful model and learning experience for other EU states.

Of huge significance in the UK model is the reliance of enforcement bodies established to promote and monitor equality. The emphasis upon the public duty to promote equality and combat discrimination has, perhaps, been at the expense of looking at public duties imposed upon private bodies, such as employers. The emphasis in the UK has been, until recently, upon individual enforcement of discrimination claims. The public enforcement bodies of the Equal Opportunities Commission and the Commission for Racial Equality played a role in test case litigation, sector inquiries and providing backing for individual litigation, alongside research into discrimination. The Race Relations (Amendment) Act 2000 introduced a duty upon public bodies to promote race equality and this is reinforced with specific duties, for example public bodies are required to produce and publish race equality schemes and action plans. The Commission for Racial Equality monitors these schemes for compliance and adequacy. This is an important step forward in terms of transparency and accountability of public bodies. It also paves the way for statistical evidence to be used to redress imbalances in the composition of a public body. This is particularly important for justifying the use of positive action and for ensuring that any positive action programme targets real need. But the whole process is reliant upon adequate monitoring of these programmes. Educational establishments appear to be the main sector where there is a proactive approach towards ensuring equality schemes and action plans reflect the needs of the staff and students who work in these areas. Particularly in relation to religious needs, for example accommodating timetables to meet particular prayer times, particular facilities for Muslim staff and students, recognising the need to wear particular forms of dress have dominated the equality agenda. Monitoring of applications for student places and the profile of the workforce lead to greater accountability and transparency in hiring procedures. However, these duties are still relatively new and the full impact of using positive measures to alter the status quo has yet to be felt. Indeed, although the use of positive action has been recognised in the United Kingdom since the 1970s, drawing upon the United States’ use of affirmative action programmes, UK law continues to see positive action as a very peripheral part of the equality/non-discrimination agenda.

In the United Kingdom the Sex Discrimination Act 1975 (as amended), the Race Relations Act 1976 (as amended), the Sexual Orientation Regulations 2003 (SORs) and the Employment Equality Religion or Belief Regulations 2003 (RBRs) provide a limited scope for positive action. Section 48 of the Sex Discrimination Act 1975 (as amended) permits employers to provide single sex training and also to encourage female or male applications in respect of jobs in which, over the previous year that sex has been significantly under- represented. A typical advertisement in the public sector would read:

“A local government office is an equal opportunities employer. Women are currently under-represented in this employment sector and applications from women are particularly welcomed.”

Section 38 Race Relations Act contains a similar approach and Regulation 26(1) of Sexual Orientation Regulations and Race, Belief, Regulations also permit the encouragement of applications from persons of a particular sexual orientation or religion or belief respectively. Section 47 of the Sex Discrimination Act, section 37 of the Race Relations Act and Regulation 26(2) of the SORS and RBRs permit targeted training by persons other than employers along similar lines to the SDA and RRA.

Section 47(3) of the Sex Discrimination Act permits training to be targeted at people in special need of training by reason of the period for which they have been discharging domestic or family responsibilities to the exclusion of regular full-time employment”. This provision appears gender-neutral but in reality targets women who continue to bear the main responsibility for childcare and eldercare. Many of these training schemes are funded by central, local government often with matched funding from the EU. Other bodies, for example trade unions, may also permit some form of limited positive discrimination under the anti-discrimination legislation.

The Race Relations Act and Sex Discrimination Act have a significant difference in relation to positive action. SORs and RBRs make targeted training, advertising lawful where the action reasonably appears to the organisation to prevent or compensate for disadvantages linked to sexual orientation, religion or belief suffered by those of that sexual orientation, religion or belief who are doing, or likely to take on the relevant work, or are holding or likely to hold the relevant posts. In contrast, the SDA and RRA require statistical under-representation before positive action measures can be taken. To require statistical evidence in relation to sexual orientation, religion and belief would, at this stage, be very difficult to adduce since such forms of discrimination have only just been recognised in law and the collection of such statistics would be difficult. Some employers are asking for this information on monitoring forms, but this is voluntary and some applicants may be reluctant to provide this information before they have a firm offer of employment.

Under Employment Equality (Age) Regulations 2006 which have been introduced to comply with the final aspect of Council Directive 2000/78/EC positive action is permitted in two narrowly defined areas: access to vocational training and encouragement to use employment opportunities. The conditions for positive action to apply are where such measures are reasonably expected to prevent, or compensate, for age-related disadvantages. But this does not extend to positive discrimination, for example recruitment a person to a post because they are from an underrepresented age group.

Under the Disability Discrimination Act 2005 amendments have been made to the current disability legislation. From 4 December 2006 there is a positive duty to promote equality between those who are, and who are not, disabled.

A controversial issue in the UK has been the attempt by the government to promote wider access to higher education. This is an interesting dimension to the equality/non-discrimination debate since the policy of the UK government is based upon the premise that children from poorer and disadvantaged backgrounds have less opportunity to meet the entry requirements for tertiary education. Higher education institutions facing growing economic and financial problems are able to charge higher fees for tertiary education but this must be matched by a requirement to demonstrate that they are also taking steps to widen participation. This can be achieved by making bursaries available to students from low income families.

There have been pressures to promote positive action by lowering admission grades for students who can show that they have been educationally disadvantaged or requiring different admission grades depending upon the kind of school (private or state) the student has studied at. Where a student feels he/she has been treated unfavourably by this system it is difficult under current anti-discrimination laws to bring a claim of discrimination and therefore the legality of this practice has yet to be tested in the courts. It is arguable that such a practice may infringe the discrimination provision under Article 14 ECHR in relation to the provision of education under Article 2 of Protocol 1 of the Convention. But the higher education institution and the government would probably be able to justify the measures as a proportionate response to a pressing social need: widening participation to higher education.

The most far-reaching idea of positive action is seen in Northern Ireland. This is often held up as an example of good practice, but in fact may not be readily transferable to other countries, or indeed other ideas of antidiscrimination models since it reflects the particular political background of discrimination coupled with violence in Northern Ireland. The Equality Commission for Northern Ireland has the duty to enforce the Fair Employment and Treatment (Northern Ireland) Order 1998, (as amended). Some of its duties are to ensure that positive action policies are implemented to ensure fair treatment between Protestants and Catholics in Northern Ireland. This has been implemented by the adoption of Codes of Practice. Employers with eleven or more employees are under a duty to register with the Equality Commission. Employers must set timetables and goals to ensure that there is a fair participation of Catholic and Protestant employees in the workforce. They must monitor constantly the composition of their workforce, returning annual statistics to the Equality Commission. Every three years the employer must review the workforce composition and hiring policies to ensure that there is fair representation of Catholic and Protestant workers in the employment. Where this is not achieved a positive action policy must be implemented.

What is of significance of the experience of the UK and positive action is the emphasis upon a strong public body with political acceptance and credibility to promote equality, to monitor how policies are working in practice and to take the lead in facilitating reviews of best practice. It relies heavily on the trickle down effect of such policies But the use of positive action continues to be in a permissible sense: it provides individual employers, government agencies, or public bodies with a defence to the use of positive action when it is attacked by aggrieved individuals, but it does little to foster the acceptance of positive action and the transfer of good practice throughout a broad spectrum of employment opportunities, or access to decision making bodies for groups who have hitherto been invisible.

Endnote:

1 Erika Szyszczak is Professor of European Competition and Labour Law. She also holds a Jean Monnet Chair of European Community Law ad personam at the University of Leicester. Prof. Szyszczak is a member of the ERRC Board since January 2005.
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