1. LEGAL MASTERCLASS
The Guildhall, High St, Bath
26th
June 2014
‘Maintaining the Business Case for Equality:
Reducing Risk and Ensuring Compliance’
EUROPEAN LAW AND ITS
RELATIONSHIP TO UK LAW:
FOCUS ON POSITIVE ACTION
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ROBIN ALLEN QC
www.cloisters.com
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Domestic law provisions
1. The Equality Act 2010 has two key1
positive action provisions
158 Positive action: general
(1)This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to
the characteristic,
(b) persons who share a protected characteristic have needs that are different from
the needs of persons who do not share it, or
(c)participation in an activity by persons who share a protected characteristic is
disproportionately low.
(2)This Act does not prohibit P from taking any action which is a proportionate means of
achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to
overcome or minimise that disadvantage,
(b) meeting those needs, or
(c)enabling or encouraging persons who share the protected characteristic to
participate in that activity.
159 Positive action: recruitment and promotion
(1)This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to
the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is
disproportionately low.
(2)Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim
of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
1
It also provides for all women short lists which will not be discussed in this session.

2. (b) participate in that activity.
(3)That action is treating a person (A) more favourably in connection with recruitment or
promotion than another person (B) because A has the protected characteristic but B
does not.
(4)But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic
more favourably in connection with recruitment or promotion than persons who do not
share it, and
(c)taking the action in question is a proportionate means of achieving the aim
referred to in subsection (2).
2. European law provides for “full equality in practice” how can that help us to work out what
sections 158 and 159 mean? Well… the answer lies in The CJEU considered this
question in a French law, which prohibited recruitment to employment in the Civil Service
for anyone aged over 45, unless the applicant was a widow or an unmarried man with
child care responsibilities; was this lawful positive action?2
(see Case C-319/2003
Briheche3
)
3. The court considered the nature of the obligation of ‘full equality in practice’ (see Article
157(4) TFEU) and held that whilst this provision while looking beyond formal equality to
substantive equality, it was not possible to say just how far this goal could be achieved
where positive action for a woman might create a claim of unlawful discrimination by a
man. It held that the French provision was not consistent with the limits to permissible
positive action as the automatic and unconditional disapplication of the relevant
conditions to certain women was insufficient on the facts to justify the step taken (see
[27] – [28]). In his opinion in the case, Advocate General Maduro considered whether
positive action measures under European law could be extended by looking at
compensatory forms of positive discrimination on equality of opportunities, rather than on
equality of results (which in the form of quotas and set targets has been deemed
disproportionate to date) (see [48] – [51]).
Questions
a. What experience do you have of positive action?
b. Can there be a policy to discriminate?
c. What Do ‘Disadvantage’ and ‘Disproportionately Low’ Mean?
d. What does ‘As qualified as’ mean?
e. How do you go about getting a positive action programme running?
f. How does the PSED work with positive action?
2
This was before the prohibition on age discrimination. As the Recast Sex Equality Directive had not yet
been enacted, the ECJ first reviewed the weaker provisions of Article 2(4) of the Equal Treatment
Directive.
3
Case C-319/2003 [2004] ECR I-8807 All European law cases can be found on the Curia website at
http://curia.europa.eu/juris/recherche.jsf?language=en