Abrahamsson and Anderson v Fogelqvist [2000] IRLR 732 ECJ
Application by Badeck [2000] IRLR 432 ECJ
Marschall v Land Nordrhein-Westfalen [1998]IRLR 39 ECJ
Kalanke v Freie Hansestadt Bremen 1995 IRLR 660 ECJ

Positive action may be regarded as any action, legislative or administrative, that provides instruments to secure equal opportunities for a specific, naturally or historically disadvantaged group": so the Advocate General summarizes the meaning of the politically sensitive concept of positive action in the recent European Court of Justice decision of Badeck. What is remarkable about this decision and also the other recent European Court decisions dealing with the same issue (Abrahamsson and Badeck), is not just the subtlety of the distinction between unlawful discrimination and lawful positive action, but also how progressive the policies are that many European countries are advancing to address the under-representation of women in the workplace.

The Badeck case concerned a local German equality law designed to ensure equal access for men and women to public sector posts. Where women were under-represented in a particular post or grade, then a women's advancement plan would provide a target for half the posts to be filled by women. This did not mean automatic selection of female candidates. Instead where a woman and a man were equally qualified for a job vacancy, then the woman would be chosen unless there were social factors which pointed in favour of the man. The advancement plan also provided for a minimum percentage of female academic posts equal to the percentage of female graduates in the relevant academic discipline. Likewise half the training places would be allocated to women where they were under represented, and there was a type of quota on employee representatives to various administrative bodies in the workplace.

These rules were challenged on the basis that they were in breach of the fundamental principle of equal treatment set out in the Equal Treatment Directive 76/207. At issue was the effect of the basic discrimination provision of Article 2(1) which states that "there shall be no discrimination whatsoever on grounds of sex either directly or indirectly..." How could this basic principle fit with positive action initiatives, and did the initiative in this case fall within one of the exceptions specifically referred to in for example Article 2(4) of the Directive? Article 2(4) states that anti-discrimination provisions shall be without prejudice to "measures to promote equality of opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities..."

The European Court in Badeck concluded that the women's advancement provisions which were the subject of the case were not unlawful. The Court broadly restated its position as set out in the previous similar cases of Marschall and Kalanke. Where women are under-represented in a particular sector, and a male and female candidate have equal qualifications, then there is nothing unlawful about a rule which prefers the woman so long as the individual circumstances of the man and women are taken into account, and the decision in favour of the woman is not absolute and automatic. The point about it not being an absolute and automatic provision is essential. It is by retaining a discretion that the employers can take into account the individual candidate's circumstances. This might cover circumstances where for example the male candidate had specific family responsibilities or was in a social situation just as difficult as those frequently faced by women.

The need for employers to retain a discretion and avoid an automatic quota system was again emphasized in another recent European Court decision, Abrahamsson.

In this case, which concerned an appointments system in a Swedish university, a rule provided that a candidate from an under-represented sex who possessed sufficient qualifications must be granted preference over a candidate of the opposite sex who would otherwise have been chosen, unless the difference between the qualifications of the man and the woman were so great that there would be a breach of objectivity in appointing the woman. This rule, held the European Court, was unlawful: the male candidate might be the better candidate but despite this might not be appointed. This lacked proportionality, and in any event the rule contained no provision for taking 
account of the candidates' individual situations.

The European Court's judgements therefore suggest, that absolute quotas are unlikely to be lawful, but suitably qualified quotas may be acceptable. So although positive action is welcomed and indeed recommended as a principle of European law, it must not be implemented in a way that is out of proportion to the qualities of the candidates and ends up making stereotypical assumptions about the men women and ignoring their own personal circumstances.

These debates in the European Courts read strangely in the British context. Our sex (as well as race) discrimination law is unsympathetic to positive action, and little allowance is made for it. All we have in the Sex Discrimination Act is sections 47 and 48 which allow for training for women or men if they are underrepresented in the workplace, and section 49 which allows a limited number of reserved seats for women in trade union elections. Apart from these two limited exceptions, any action which favours one sex rather than the other is unlawful, regardless of any background circumstances of under representation.

The case of Jepson v Labour Party (1996 IRLR 116) is evidence of the rigidity with which Tribunals may interpret positive action. This is a far cry from the sort of positive action which was being sanctioned and indeed approved of in the Badeck case.

For example, one of the provisions under scrutiny in Badeck, startling from the British perspective, was the law which stated that when candidates were being considered for a job, capabilities and experience which had been acquired by looking after children had to be taken into account in so far as they were of importance for the suitability, performance and capability of the candidates.

The extent to which the Sex Discrimination Act is out of step with European law in this respect is also apparent from the recent amendment to the EC Treaty following the Treaty of Amsterdam.

The amended Article 141 provides that "the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers".

In addition, as far back as 1984, the Council Recommendation of 84/635 acknowledged that "existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken...to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures."

Member States are thereby encouraged to adopt a positive action policy to encourage women candidates, particularly as regards positions of responsibility. The UK provisions on training and reserved seats look paltry in this context.

At a time when the pay gap between men and women in Britain is still much in evidence and statistics continue to show women clustered in lower grade jobs, positive action measures along the lines of those adopted elsewhere in Europe and sanctioned by the European Court should perhaps be considered more closely as a way forward in this country.