Bridging the gap: An exploration of the use and impact of positive action in the United Kingdom
| Author | Chantal M Davies,Muriel Robison |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/1358229116655647 |
| Subject Matter | Articles |
Article
Bridging the gap: An
exploration of the use
and impact of positive
action in the United
Kingdom
Chantal M Davies and Muriel Robison
Abstract
Despite laws in Britain permitting limited positive action initiatives to combat dis-
advantage faced by minority groups in employment since the mid-1970s, the subject has
notoriously been a neglected and highly controversial area in the United Kingdom.
2010, it still appears that organizations prefer to steer clear of this opportunity to
address disadvantage suffered by protected groups. While there is a body of work
considering the theoretical importance of positive action in the United Kingdom, there is
a lack of empirical exploration of the practical implications of these provisions. This
article will provide a brief overview of the theoretical context and current positive action
legislative provisions within the United Kingdom. In light of this context, the early
findings of a small-scale qualitative study carried out by the authors will be discussed
looking at the experiences of a purposive sample of public and private employers in
relation to the positive action provisions of the Equality Act 2010. Early research findings
suggest that while there was a clear willingness and openness by employers to use of
outreach measures in order to redress disadvantage, there was evident wariness
regarding a move towards preferential treatment as expounded by section 159. While
respondents appeared to appreciate the business case for and utility of the positive
action measures under section 158, there was far less enthusiasm for more direct
preferential treatment, with many respondents raising serious concerns regarding this.
Forum for Research into Equality and Diversity, Law School, University of Chester, Chester, UK
Corresponding author:
Chantal M Davies, Forum for Research into Equality and Diversity, Law School, University of
Chester, Parkgate Road, Chester, CH1 4BJ, UK.
Email: chantal.davies@chester.ac.uk
International Journalof
Discrimination and theLaw
2016, Vol. 16(2-3) 83–101
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/1358229116655647
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These concerns often reflected a highly sensitive risk-based approach towards any action
that could expose their organization to the possibility of ‘reverse discrimination’.
Keywords
Positive action, employment, equality, recruitment
Introduction
Since the mid-1970s laws have existed in the United Kingdom permitting limited forms
of positive action in employment in order to redress disadvantage faced by minority
groups. Since the inception of ‘affirmative action’ in the United States in the 1960s, the
related term ‘positive action’ has been increasingly used in a social, legal and policy
context in the United Kingdom over the last 40 years. Positive action involves the ‘use of
special measures to assist members of disadvantaged groups in overcoming the obstacles
and discrimination they face in contemporary society’ (O’Cinneide, 2009: 279). These
‘special measures’ are intended to ensure ‘equality of opportunity’ as opposed to ‘equal-
ity of outcome’ (O’Cinneide, 2009).
1
Any attempted development in relation to positive
action in the United Kingdom has arguably been contentious due to the potential for
‘reverse discrimination’ (Fredman, 2011).
2
More recently, the existing positive action
provisions for the individual protected characteristics were largely transferred into the
Equality Act 2010 (section 158 Equality Act, 2010). This was however subject to a
broader approach in the new section 158 arguably moving from the previous equality of
opportunity approach towards an ‘equality of results’ model (Robison & Burrows, 2006)
(see below for further discussion). In 2011, further legislative development of positive
action unfurled with the implementation of section 159 of the Equality Act 2010. Thus,
positive action in the United Kingdom progressed into fresh terrain permitting organi-
zations to utilize a ‘tiebreak’ provision in the employment sphere in relation to recruit-
ment and promotion. In many ways this could be seen as a form of preferential treatment
(in line with McCrudden’s (1986) categoriza tion of positive action). While sections
158 and 159 are permissive rather than mandatory, arguably the PSED under section
149 of the Equality Act 2010 places an onus on the public sector to have due regard to
the need to redress disadvantage via the positive action provisions.
The challenge of redressing disadvantage suffered by protected groups via the per-
missive provisions of section 159 (in particular) appears to have largely been ignored by
employers. This is supported by the lack of case law demonstrating use by employers as
well as a dearth in good practice examples demonstrating use of section 159. Indeed the
research that forms the basis of this article further reinforces this. Exceptionally, the
Judicial Appointments Commission (JAC) ann ounced its intention to use the ‘equal
merit provision’ in recruitment exercises from 1 July 2014 in order to promote diversity
within the judiciary (Judicial Appointments Commission, 2014; Malleson, 2009). Simi-
larly, there are indications that trade unions in male-dominated sectors are seeking to
promote employer engagement with positive action initiatives (see, for example, work
84 International Journal of Discrimination and the Law 16(2-3)
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