Part A Q.1 – 2013 Past Paper“Businesses must be able to manage their affairs in a way that allows them tobecome more efficient, more competitive on a domestic and global basis andhence more likely to grow and employ more people.

Yet much of employment law and regulation impedes the search for efficiencyand competitiveness. It deters small businesses in particular from wanting totake on more employees: as a result they grow more slowly than they otherwisemight. Many regulations, conceived in an era of full employment, are designed tomake employment more attractive to potential employees. That was addressingyesterday’s problem. In today’s era of a lack of jobs those regulations simplyexacerbate the national problem of high unemployment.” (Beecroft Report onEmployment Law (24 October 2011))

Do the views in this report suggest that governments now perceive the primaryfunction of labour law as a means to improve efficiency and competitiveness,rather than as an instrument of social justice?

Labour legislation is applicable on particular kinds of workrelations. It needs to distinguish employment relations frombusiness relations. In commercial and business relations,statutory employment rights are not applicable, for example,a solicitor or a hairdresser cannot insist on being paid aminimum wage by a client nor complain of unfair dismissal iftheir clients choose to go elsewhere for their services.Most legislation aims to protect employees against themisuse of managerial power and instances of exploitationsuch as low pay; labour laws are therefore directed at thecontracts of employment.

There is no doubt that increased regulation has done much toempower the employee by bestowing a level of employmentrights and standards. However, it has been suggested thatthe imposition of such a burden on employers impedes uponbusiness efficiency and works to decelerate growth in thelabour market during times of economic hardship. In recentyears the landscape of the global economy has dramatically

changed. The recent economic crisis has meant there has beena colossal shift by policy makers in respect to labourregulations. This saw them move away from focusing onincreasing employment rights, making employment moreattractive to potential employees, thus relieving themselvesof the burden of unemployment, toward a more relaxedapproach where business are given a greater scope to managetheir affairs without government intervention and labourregulations. The idea is, that the increased regulationplaced a too high of a risk to employers during a time ofuncertainty, a risk employers were previously willing totake in prosperous times.

Deregulation of the labour market means that there needs tobe a re-balancing of the burden of unemployment. Duringprosperous times, policy makers have been eager to placesuch a burden upon the employer in many different ways,through the introduction of statutory holiday, maternity andsick pay, statutory unfair dismissal and redundancy pay. Itis therefore not difficult to understand why employers wouldbe reluctant to grow their businesses and take on newemployees in times of hardship; as employment can be seen togive rise to additional liabilities. Where then should theburden be placed? Should the burden be then placed entirelyon the state by means of social welfare, or alternativelyshould the burden of unemployment be placed upon theunemployed individual? Finding an answer to the question ofbalance has proven to be the enigma of successivegovernments; the topic of many white papers andparliamentary debates. In turn labour rights and regulationshave yo-yoed accordingly. Being the subject of constantchange has lead to small employers and lay employees nolonger being able point, with any certainty, to their rightsand liabilities.

However, labour regulations do not only fluctuate in timesof economic prosperity and relax in times of economichardship, as mentioned above, there are situations in whichlabour law does not apply at all, regardless of the economic

landscape. The workforce has moved away from industrial massproduction towards a service economy over the past twodecades which has created for a shift in both employers andemployee/worker patterns with ‘flexibility’ being its mainobjective. However, flexibility of the labour marker ischaracterised by insecurity, fluctuations in pay andunpredictability. The tension between employment rights andbusiness efficiency has been mostly irrelevant with thenotion of flexibility. This is because employers haveincreasingly sought to accommodate the changing nature ofthe workforce with numerical instead of functionalflexibility. That is, employers seek to adjust labour inputsto meet their needs by outsourcing workers through agenciesand fixed term contracts, instead of employing individualslong term and adjusting their tasks to suit demand.Employers have seen to vertically disintegrate theirworkforces to create for heightened business efficiency.They have replaced employment contracts with commercialcontracts and have effectively reduced labour costs andreduced the risks associated with typical employment.Vertical disintegration has seen the rise of the atypicalworker.

The atypical worker falls short of the title ‘employee’ andtherefore is not granted the same level of statutoryprotections and rights to that of an employee. Employershave sought to maximise their business efficiency byoutsourcing their workers. Worker status does not give riseto statutory obligations discussed above, such as holiday,sick and maternity pay. However, the main advantage foremployers to seek atypical workers as opposed to employing aconsistent workforce is the ability to adjust to demand.Businesses are seen to be prioritising efficiency and growthover employee loyalty, a trade off many employers are toowilling to take as it means loosing burden of a vast amountof employment regulations. It should not be assumed howeverthat all part-time and atypical work is to the detriment ofall workers, this sort of work suits many people with itsflexible nature can sometimes be preferred. That said, the

rise of agencies and zero-hours contracts have had anegative impact on many. Especially those who are workingfull time for a single end user, they are employees ineverything but name, but lack the job security and thelabour rights their employed counterparts enjoy. The notionof numerical flexibility thus only brings insecurity andunpredictability for workers who are seen to be taking aback seat to business efficiency.

In conclusion, increased labour regulations seek to maximisebusiness efficiency and competitiveness during times ofeconomic prosperity by making employment attractive topotential employees, it also incentivises businesses toinvest in their workforce and in return employers receiveemployee loyalty. Employee loyalty is an essential part ofbusiness efficiency and competitiveness during times ofeconomic prosperity and teamed with labour regulations is aneffective instrument of social justice. However as theBeecroft Report suggests, much of labour law and regulationimpedes on the search for efficiency and competiveness intodays era that is plagued with economic hardship. Strictlabour law and regulations can be seen to be acting as adeterrent to potential employers who appear to be scaredinto outsourcing their workers to avoid undertaking theburdens which come with employing a consistent workforce.This type of vertical disintegration has made it possiblefor businesses to begin to prosper again, but this has beento the detriment of the workforce as a whole. By denying jobsecurity and using the idea of ‘private contractors’ andagencies has, in itself, been a tool of social injustice.

2012 & 2013 past papers – implied terms “Terms implied by law inevitably present challenges to the definition of the proper relationship between express and implied contractual terms.” (Barmes (2004))

“Implied terms have developed over recent years to provide effective protection

to employees.”

Introduction

People work under many different institutional arrangements,in the past these arrangements included slavery, forced andpaid labour; each of these arrangements had an establishedand unique legal framework. The 19th Century saw the spreadof industrialization through Europe where the prominentlegal institutional arrangement for paid work was found inthe law of contract. This arrangement was part of the largereconomic system of the time which regarded the hire ofworkers to perform work like any other market transaction;freely undertaken exchange of goods and services in exchangefor payment.

Sanctity of Contract

Like all contracts, contracts for the hire of services wasgoverned solely by the common law and were subject to theordinary rules of contract, that of, offer, acceptance andconsideration. Contracts for the hire of services was laterdistinguished between ‘contracts for service’ and ‘contractsof service’, the former describes the services of a self-employed ‘independent contractor’, and latter that of an‘employment’ situation. For the purposes of this essay, oneshall be considering the terms of the latter, ‘contracts ofservices’; the employment contract.

In line with the general principle of contract law, thecommon law respects the principles of freedom and sanctityof contract. Traditionally, the express terms of thecontractual agreement shall be the whole design of theeconomic relationship between the parties. The contract laysout the type of work, the conditions under which the workshould be performed, duration, the allocation of risksbetween the parties and the remuneration to be paid.Previous to and during most of the industrial revolutionlabour law could be described as a ‘nexus of contracts’ andthere was little state intervention (lassie faire period)

into employment relationships. The courts were merely thereto enforce the contractual agreements that individuals hadfreely negotiated and entered into. However, the principleof ‘freedom to contract’ did not take into consideration theinequality of bargaining power during contractualnegotiations so over the years the state and the courtsslowly began to intervene.

Intervention

Until the middle of the twentieth century, most workingarrangements were concluded orally, and the key points wereexpressly agreed (wage, hours, etc.), this left many detailsof the relationship unspecified. To resolve disputes thecourts were seen the flesh out the details of employmentagreements. The courts found the express terms of thecontract from the ‘agreement’ itself, they then began tosupplement those (express) terms with implied terms. Termscan be implied in three ways; by statute, by fact and bylaw.

Statute

Where there is a statutory provision an express term cannotoverride or modify it, for example, statute imposes aminimum wage, an employer cannot fall below that proscribedminimum.

Fact

There are four main types of terms implied by fact:

1. Obvious terms, i.e. a term is so obvious that it goeswithout saying. The test for implying an obvious termis sometimes known as the officious bystander test, onthe ground that the bystander who suggested that theterm be expressly included in the contract would be“testily suppressed” by both parties with a common “oh,of course” – Southern Foundries v Shirlaw

2. Terms that are necessary to give a business efficacy,

i.e. terms is essential for the contract to workeffectively

3. Terms implied by conduct, i.e. the way in which thecontract is to be performed demonstrates that theparties intended to be bound by the relevant term

4. Terms implied by custom, i.e. where the term isroutinely adopted in a particular trade

Law

Terms implied by law are those which are presumed to be apart of every employment contract, these implied terms aresaid to be a set of ‘default rules’. These terms havecreated for a new legal institution regarding employmentcontracts which have sought to form a ‘standard model’ ofworking arrangements. Terms implied by law place obligationson both the employer and employee and are implied in allcontracts save for those that contain expresslycontradictory terms.

An employers implied obligations include:

- To take reasonable care for the health and safety ofemployees;

- Not, without reasonable cause, to act in a mannerlikely to destroy mutual trust and confidence;

- Not to treat an employee arbitrarily, capriciously orirrationally in matter of remuneration, and;

- To give reasonable notice of termination of thecontract

Employees implied obligations include:

- To obey lawful orders of the employer;- To take reasonable care in the performance of their

contract;- To act loyally toward the interests of the employer;- To serve the employer faithfully within the

requirements of the contract, and;- To give reasonable notice of termination of contract.

As we can see, the implied obligations seek to protect theemployer and employee alike by imposing obligations uponeach. Implied obligations are not just a judicial extensionof state paternalism by intervening on the behalf of theweaker party (the employee who lacks bargaining power).

Terms implied by law in practice

As previously mentioned, generally, the imposition of the‘default rules’ is only applicable in the absence ofcontradictory express terms. The case of Malik v BCCIconfirmed this with Lord Stein holding that parties are“free to exclude or modify these ‘default rules’” expresslyby contract, but ultimately express terms take priority overthose implied by law. Lord Stein revisited this point in thesubsequent case of Johnstone v Bloomsbury. Here the courtconsidered the circumstances in which it could be possiblefor an implied term to be used to qualify or regulate theway in which an express term can operate. The court turnedprimarily to the implied term of mutual trust and confidenceand held that an express provision in Mr Johnstone’scontract (stating he could be liable for 48 hrs. overtimeeach week) was controlled and regulated by the implied termof mutual trust and confidence. That is not to say that theimplied term overrides or cuts down an express term, theimplied term seeks only to regulate the manner in which aparty exercises an express term; the express term must notbe exercised in a way which seeks to destroy therelationship of mutual trust and confidence between theparties.

However, implied obligations not only serve to protectemployees, they too seek to protect employers from vexatiousemployees. This can be observed in the case of Secretary of Statefor Employment v ASLEF. In this case, a trade union instructedits members to follow a ‘work to rule’ policy which saw themembers follow their employment rule book in a strict andliteral fashion as a way to disrupt the business. The courtof appeal held that by following the lawful instructions of

the employer (contained in the employee handbook) in amanner which had the effect of disrupting the employer’sbusiness was a breach of the implied term to exercisereasonable care in the performance of their contract.Therefore in cases where a businesses rulebook isincorporated within the terms of contract, these lawfulinstructions cannot be followed in a way which seeks todisrupt the business. Again we can how an implied term canserve to control an express term of the contract.

Conclusion

The hierarchy of contractual terms in relation to employmentcontracts do present considerable confusion; an express termis overrode by a term implied by statute, whereas a termimplied by law can be modified or excluded by an expressterm, however an implied term by law is capable ofqualifying and controlling an express term.

Having the legal value of an implied term being divisibledependent of the source of implication in employmentcontracts has posed to challenge the definition of theproper relationship between express and implied contractualterms. However, the formulation of implied terms by law canbeen described as providing a much needed judicial bridgebetween the underlining legislative interventions (termsimplied by statute) that replace or qualify the previouscontractual framework approach, by adding substance to them.

Implied terms, by statute, by fact, and by law havedeveloped to protect both employers and employees alike.Implied employment contractual terms should be appreciatedfor adding substance to the statutory and common law(contract rules) regarding contracts of services. And have,in turn, created for a fairer and more pleasant workingenvironment where protection and obligation is balanced moreequitably.

“The law governing the tortious liability of a trade union for the industrial action of its members is fragmented, complex, often unpredictable and sometimes unprincipled in nature.”

Introduction

Industrial action refers to any measure taken collectivelyby trade unions meant to reduce productivity in a workplace.A workplace dispute dispute can lead to many forms ofindustrial action including a strike, a ban on overtime,working to rule, or refusing to carry out certain tasks –all designed to put pressure on the employer. Disruption tothe employers business is likely to come at a cost to theemployer who shall want to seek a remedy for the harmstemming from the industrial action. However, over the yearsthe law governing the tortious liability of a trade unionfor the industrial actions of its members has been said tobe ”fragmented, complex, unpredictable and sometimesunprincipled in nature”. Recourse for employers and therights granted to trade union members (in turn grated totrade union’s themselves) have been plagued with uncertaintythrough many conflicting policy, legislative, and judicialstances, all of which overrule or adjust the former. Howeverone thing seems to be clear, a balance between theemployer’s rights to recourse and the unions rights ofimmunity is a hotly contested subject, one which successivegovernments seek to balance in a way which seeks tocompliment their own policies. Governments and the courtshave left a huge wake of uncertainty in regards to theimposition of tortious liability making for an excellenttopic to illustrate the historical legal development oftrade union liability. This essay shall consider the phasesof union liability from the mid 19th Century to the presentday, with specific reference to striking action.

Tortious Liability at the Common Law

At common law all forms of industrial action are likely toconstitute a breach of contract on the behalf of theemployee taking part. This is usually a breach a termimplied by law, namely the obligation of the employee totake reasonable care in the performance of their contract.This can be illustrated in the case Secretary of State forEmployment v ASLEF, here the Court of Appeal held that theemployees were in breach of their implied obligation (totake reasonable care in the performance of their contract)by following the instructions of their trade union to followa ‘work-to-rule’ policy aimed at disrupting their employersbusiness. As well as holding that most kinds of industrialaction to be a breach of an express or implied term of theindividuals employment contract giving rise to personalliability governed by the law of contract. The common lawalso found it to be tortious to induce someone else to breaktheir contract of employment, this can be dated back to themid 19th Century (Lumley v Gye), and this in turn gave risetrade union liability in tort. The imposition of vicarious liability upon trade union forthe contractual breaches of their members was established inthe House of Lords case Taff Vale Railway Co. Ltd v ASRS. The courtheld that, at common law, a trade union can be held liablefor the loss of profits to the employers as the result ofstrike action. The Lords ruled that, if a union is capableof owning property, and capable of inflicting harm onothers, then it is liable in tort for the damage it causes.In the wake of the Taff Vale decision followed many otherdamning rulings which sought to open up the arena for tradeunion liability even further basing such an imposition onconspiracy where the court could not establish a clearbreach of contract; Quinn v Leathem and South Wales Miners’ Federationv Glamorgan Coal Co.

These common law developments were to make it impossible fortrade unions to provide a lawful excuse or justification for

their actions: they stood naked and unprotected at the alterof the common law. The decision of Taff Vale outraged thelabour movement and was said to give force to theestablishment of the UK labour party. It was not surprisingthat parliament was quick to respond and effectivelyreversed the rule in Taff Vale with the Trade Disputes Act1906.

Statutory Immunity for Trade Unions

Section 4 of the Trade Disputes Act 1906 gave trade unionsan almost complete immunity in tort, this was justified bythe newly elected Liberal government as being necessary toprotect trade unions from the courts. This measure was notwithout its critics, especially by the judiciary who claimedthe measure was inconsistent with the rule of law.Nevertheless from 1906 until 1982, for the most part it wasnot possible for injunctions to be obtained against tradeunions. By the same token, it was generally not possible toobtain damages, in tort, against trade unions for the lossesincurred in the course of strike action. However thisseemingly absolute immunity that trade unions enjoyed wasradically changed by the initiative of the 1979 conservativegovernment which saw the passing of the Employment Act 1982.The Act repealed much of the 1906 Act and the immunitiesthat came with it and the tortious liability for tradeunions was restored.

Trade union liability is now governed by TULRCA 1992 withsection 20 and 21 confirming the restoration of tortiousliability for trade unions for the harm caused by unionaction. However, a union will only be liable, in tort, ifthe action in question ‘is to be taken to have been endorsedby the trade union’. The provisions of ss 20 and 21 TULRCAare very wide in scope and are seen to override any unionrules to the contrary. For the trade union there issomething of a dilemma. Either it must face the risk ofliability caused by the conduct that is did not formally

approve, or alternatively take steps to repudiate theunapproved action: the latter would be unpopular with theactivist members who may be discouraged by such a responseby the union. The case of Gate Gourmet v TGWU shows how evenwhere the action (in this case a spontaneous walk-out) wasnot formally approved by the Union, the action can still beattributable to the union where the union officials have a‘probable level of knowledge as to was occurring’ and thatspecific (non-senior) officials can be said to have‘authorised these unlawful and tortious activities’ simplyby attending the picket. Due to the absence of a repudiationof the conduct of its members, an injunction was granted.Therefore it may be inferred that all collectively actionsby union members, authorised or not, are likely to beattributed to the trade union in the absence of a repudatorystatement for the purposes of tortious vicarious liability.This, however, is not without warning (S.21(3) TLURCA).

Damages

The amount of damages that may be recovered for torts causedby industrial action is subject to a statutory ceiling;£250,000 for unions with 100,000 members or more; £125,000for unions with between 25,000 and 100,000 members; £50,000for unions with between 5,000 and 25,000 members; and£10,000 for unions with less than 5,000 members. Thiscelling applies to each plaintiff to the action and not tothe proceedings as a whole.

Further Considerations

It should be noted, in spite of the UK’s unpredictableapproach to imposing tortious liability upon trade unions.The right to join a trade union is much protected in the UKthrough Article 11 of the Human rights Act (Freedom ofAssociation) and its ECHR counterpart. However, the mostdeep rooted protections are found in TLURCA with s 137 which

prohibits the refusal of employment on the grounds of beinga member of a trade union and s 152 which makes dismissal onthe grounds of joining/being a member of a unionautomatically unfair; giving rise to claims of unfairdismissal.

Trade union members have been further protected by thecoalition government who introduced the 2010 BlacklistRegulations after an ICO investigation uncovered a databaseof over 3,000 names relating to trade union membership,being sold by a consulting association to employers at anannual subscription: to avoid hiring passionate unionmembers, a clear breach of s.137 TURCA. The BlacklistRegulations sought to regulate employers background checks.Vetting potential employees was not banned by theregulations, so long as it doesn’t include any trade unionrelated checks.

Conclusion

The laws governing tortious liability for the industrialaction of its members have not necessarily beenunpredictable. The conservatism of the judiciary shallalways prevail and promote the strictness of the common lawwithout intervention. This was seen in the times of Taff Valeand Leathem. However, legislative intervention has been downto the discretion of strong governments of the day throughpromoting and implementing party policies. This wasparticularly apparent with the shift from a lassie-fairesystem to a more collective approach in 1906 where the newlyLiberal government (with the endorsement of the Labourparty) was seen to hand trade unions an apparent veil ofimmunity from tortious claims. This was a measure deemednecessary for existence of collective action. The 1970’s sawa period of unprecedented industrial action with unionmembership peaking at 13 million members. Responding to therise of union membership and activity made the reformationof trade unions at the top of Margaret Thatcher’s manifesto

for the elections of 1979, therefore it is no surprise thatonce elected Thatcher sought to implement party policy andrestored union liability, via the Employment Act 1982.

Although the law governing tortious liability of a tradeunion has dramatically changed many times since the mid 19th

Century, the changes have not necessarily beenunpredictable. Law does not arise in a vacuum, this hasnever been more apparent than when considering this currenttopic. The powers, immunities and liabilities of tradeunions are entirely dependent on the policies and agenda ofthe government of the day, without governmental interventiontrade unions would remain unprotected and at the mercy ofthe common law.

“Even after the changes introduced by the Equality Act 2010, the scope for employers inthe UK to engage in positive action or affirmative action remains very circumscribed.”

“The greatest weakness in anti-discriminationlaw is its failure to make adequate provisionfor positive or affirmative action.”

IntroductionIt is widely believed that the problems of discriminationand inequality in employment and services will not disappearon their own and that suitable interventions are required tonurture a workforce of all talents that reflect the variedcommunities being served. Although the purpose of equalopportunities polices has been to tackle discrimination andinequality, minority groups continue to face barriers in theworkplace, which prevent them from enjoying equalopportunity, indicating the need for institutional change.However, the subtle permissive provisions of section 158 and

159 of the Equality Act 2010 leave much to be desired on thepursuit equitable participation in the workforce andservices. This essay shall first consider what is meant by‘positive action’ and what it is not. Secondly I shall givethought to the scope of ss 158 and 159 and discuss theparliamentary considerations, support and reservations ofthese specific provisions of the Equality Act 2010. Thirdly,I shall go on to consider Ireland and the USA’s approach topositive action and contemplate the advantages anddisadvantages of their equality policies in comparison withthe UK. By the end of this essay I hope to have painted acomplete picture of positive action in the UK. In doing so Iintend to illustrate how anti-discrimination and employmentlaw in the UK has failed to make adequate provisions forpositive action in comparison with other like countries.

‘Positive Action’ and ‘Positive Discrimination’’The terms ‘Positive action’ and ‘positive discrimination’are often confused or used synonymously, however, they donot mean the same thing. It is therefore important tounderstand the way in which each scheme operates beforemoving on to consider the scope of the provisions of ss 158and 159 of the Equality Act.

‘Positive action’ consists of proportionate measures toencourage members of protected groups that are socially oreconomically disadvantaged to participate in the labourmarket and other forms of services. Positive action mayinclude, encouraging women to apply for jobs or promotionsand encouraging BEM’s to apply for education or trainingschemes. In his 1986 article McCrudden identified fiveactivities that ‘positive action might include’, those were;eradicating discrimination, facially natural but purposely-inclusionary policies, outreach programmes, preferentialtreatment in employment and, redefining merit. Althoughthese five categories indicate as to what positive actionmay look like, it must be noted that the last two ofMcCruddin’s examples may amount to positive discriminationas opposed to positive action. Postive action falls within

Fredman’s second principle of equality, that of ‘equality ofopportunity’. This is because affirmative action seeks tolevel the starting point for people from protected groups byremoving obstacles and in turn granting members of protectedgroups equal access to services and to the labour market.

Conversely, ‘Positive discrimination’ in employment normallyindicates actions that seek to redress historicalinequalities through a reverse principle of discriminationin favour of a disadvantaged group. Therefore, positivediscrimination is the admittance, recruitment or promotionof a person solely because they have the relevantcharacteristic, this practice falls within Fredman’s thirdprinciple of equality; ‘equality of outcome’. Positivediscrimination seeks to increase representation of membersof protected groups by ‘redefining merit’ (McCrudden).Positive discrimination is seen to place ‘merit’ upon aprotected characteristic. Traditionally the term ‘merit’ isreserved to describe achievement which warrants reward,therefore to deem a persons characteristic, such as sexualorientation or race, as an achievement deserving reward,such as a promotion. This completely redefines the conceptof merit that is usually based upon achievements independentof the protected characteristic, such as a professionalqualification.

Positive discrimination is therefore a form of directdiscrimination, this is because the practice seeks to treatone group less favourably than another because of theirprotected characteristic. Direct discrimination isprohibited by s. 13 EA, however, there is one exception tothis rule. S 13(3) states that ‘if the protectedcharacteristic is disability, and B is not a disabledperson, A does not discriminate against B only because Atreats or would treat disabled persons more favorably than Atreats B’

The scope of ‘positive discrimination’ in the UK operateswithin a very narrow scope and is only permitted where theprotected characteristic is disability; for the most part

positive discrimination is unlawful as it contravenes s 13EA. ‘Positive action’ on the other hand is permitted by theAct and operates within a wider scope than itsdiscriminatory relative. The provisions pertaining topositive action can be found in ss 158 & 159 EA.

Section 158 and 159 Equality Act 2010

There has been much parliamentary discussion on what sort ofaction ss 158 & 159 EA permit. The first this that should benoted, is that s158 & 159 establish a permissive frameworkunder which form of positive action can be taken. Any use ofsuch provisions will be entirely voluntary; there is no dutyupon private employers and service providers to adopt anysuch provisions. Conversely, s.149 EA imposes such a dutyupon the public sector. The public sector has a duty toeliminate discrimination (s149 (1)(a)), advance equality ofopportunity (s149 (1)(b)), and foster good relations betweenthose who do not share a protected characteristic s149 (1)(c)).

Section 158 & 159 permits a general exception to allow for‘positive action’ by allowing a person to take ‘any action’,as long as it is a ‘proportionate means’, to achieve theaims of enabling or encouraging persons who share theprotected characteristic to overcome or minimise thatdisadvantage, meeting those needs, or enabling orencouraging persons who share the protected characteristicto participate in that activity (s.159 (2)). The protectedcharacteristics are listed in s4 EA. It can therefore beinferred that positive action in recruitment and promotioncan be used where an employer reasonably thinks that peoplewith a protected characteristic are under-represented in theworkforce, or suffer a disadvantage connected to thatprotected characteristic. However, positive action unders158 does not allow ‘anything that is prohibited by or underan enactment other than this Act’, under section 158(6) – assuch, positive action cannot include positive discrimination

as this would be contrary to section 13 of the Act.

However, these measures can only be taken where there aretwo equally qualified candidates (s.159(4)(a) and wherethere is no official policy (within the business) oftreating persons who share the protected characteristic morefavorably (s.159(4)(b). Therefore, companies can only takethe diversity of their workforce into account when makingappointments where there are two candidates of equal merit;a tie-breaker situation. Theresa May, the Home Secretary,expressed practical concerns regarding the likelihood of agenuine tiebreaker situation arising stating that shesuspects there to be few circumstances where there are twotruly equally qualified candidates for any given position.Therefore, in the majority of situations, if the positionwere to be given to the person with the protectedcharacteristic in the quest for diversity, it would amountto positive discrimination in convention of s13 EA. Thatsaid, it has been argued that a wider and more practicalinterpretation of the words ‘as qualified as’ was needed indetermining the scope of s.159. A functional interpretationof s159(4)(a) merely means that s.159(2) can only applywhere both candidate met the criteria for the post; no needfor them to be equally qualified.

Even-so, s159(4) has shed considerable constraint upon theoperation of positive action as it expressly prohibits theuse of diversity policies (s.159(4)(b)) and can only beactivated upon a tie-breaker situation (s.159(4)(a)).Therefore, even though the Equality Act has permitted theuse of affirmative action, its operational scope remainsvery limited.

Northern Ireland

The situation regarding positive action in Northern Irelandis of stark difference to that adopted by the rest of theUK. The Fair Employment and Treatment Order 1998 places a

duty upon employers to adopt practices which promoteequality and diversity. In general terms the legal frameworkprovides that, employers with more than 10 employees areobligated to collect data on the religious composition oftheir workforce, as well as job applicants. At least onceevery three years, each employer must review the religionscomposition of those who are employed and determine whethermembers of each community are enjoying fair participation inemployment. If there is not fair participation of bothcommunities, the employer must determine ‘the affirmativeaction which would be reasonable and appropriate’. TheEquality Commission can require employers to provideevidence of the reviews that they have conducted.Ultimately, the Commission can direct an employer to takeaffirmative action and set for the employer goals andtimetables for changing the religious composition of thefirm. These directions are legally enforceable.

Further, to redress the substantial underrepresentation ofCatholics in policing, recruitment to the Police Service forNorthern Ireland (PSNI) is governed by a special legislativearrangement. The Police (Northern Ireland) Act 2000establishes a “50:50” recruitment scheme. This scheme fallswithin the realm of positive discrimination.

USA

The USA legislator has embraced positive action policieswithin the employment and education sector. It places a dutyupon public sector employers to eliminate discriminatorypractices, and adopt positive action policies to remedyunequal workforces. It also encourages the private sector toadopt such policies. For a policy promoting positive actionin the USA, it must fist satisfy the two-tiered test ofstrict scrutiny imposed by the federal court. The first limbrequires a policy to be supported by a compelling interest.In employment cases, a compelling interest has amounted toplans to seek to address past discrimination. This does not

include broad notions of societal racism, the employer mustdemonstrate through specific examples where it hasdiscriminated and how the positive action plan addressedthat discrimination. In higher education cases, diversityhas been found to be a compelling interest and race can beused as a factor in achieving this diversity. Second, themethod selected to achieve this racial classification mustbe narrowly tailored to achieve this goal. Once the goal hasachieved, the policy must cease, this is applicable tobother the public and private sector.

Conclusion

As we can see, in comparison to Northern Ireland and theUSA’s stances on positive action, the narrow scope of ss158& 159 is left considerably wanting in the quest for equalityand representation in the workforce. I do not suggest thatparliament go as far as Northern Ireland to promote the useof positive discrimination within the public sector andimpose a duty upon private sector employers to submitreviews to the Equality Commission every three years.However, the USA’s stance may be the sensible median betweenthe three legal frameworks. If the UK were to permit andencourage the use of positive action policies (currentlyprohibited under s159(4)(b) EA) in the private sector, itwould allow for positive action objectives to better fulfilltheir purposes, to achieve an equality of opportunity. Ifpositive action policies were encouraged to be adopted bythe private sector, it may result in encouraging morecandidates from protected grounds meeting the minimumcriteria to apply in the first place. This would be remediedby simply extending the provisions of s.149 EA past thepublic sector to the private sector, and place a duty uponall employers to eliminate discrimination and promoteequality.

In conclusion, for as long as the UK’s anti-discrimination framework remains purely permissive and constrained by the

provisions in s158 & 159 EA, the scope for positive action shall remain wanting and for the most part ineffective in achieving a meaningful equality of outcome.