David Cameron has pledged that if the Conservative party win the next election, he will give a third of ministerial jobs to women - but organisations considering replicating his plan should think again if they want to avoid potentially damaging lawsuits on the basis of positive discrimination, says Glovers solicitors.
“Positive discrimination, as a general rule, is unlawful under both UK and EC law, because positive discrimination in favour of one say, gender, tends to result in unlawful discrimination against the other gender” explains partner and employment lawyer at Glovers, Sikin Andela. “Therefore companies wishing to promote more women must be careful not to do this in a way which could be construed as positive discrimination.”
“David Cameron’s proposals are justifiable as an important exception to the rule applies” adds Andela. “A registered political party is exempt from the terms of the Sex Discrimination Act 1975 in selection of candidates for national, European and local elections. This is subject to the proviso that the sex discriminatory selection arrangements are being used ‘for the purpose of reducing inequality in the numbers of men and women elected.’”
The Act also makes it lawful to have women-only shortlists at political elections, however Cameron has ruled this out. Shortlists are most definitely regarded as discriminatory in any other scenario - a very different situation to that in Norway, which not only allows this kind of affirmative action, but has introduced a quota. Companies that fail to appoint women to 40% of their non executive board director positions are now breaking the law. Until similar changes are introduced in the UK, organisations must continue to encourage the promotion of women through more ‘conservative’ channels.
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