The government’s hopes of urging employers into positive action in recruitment with the Equality Act are being dampened by industry experts who have announced that it is unlikely to help.

The Equality Act, which states that candidates from under-represented groups can be given preference by employers as long as they are of equal suitability to the other candidates, is due to become law in October after being passed in Parliament last week. In this way employers should be able to increase the diversity of their workforces.

However, experts are now warning of the difficultly of determining when individuals can be considered equally qualified or not. The guidelines offered by the Court of Justice that candidates can only be favoured when they possess ‘substantially equivalent merits’ to others, provide an uncertainty, it is said, which make it hard to see employers making use of their new power.

For senior level appointments it is thought to be particularly difficult to apply. A partner at the law firm Eversheds, Audrey Williams, stated that for senior roles career histories are so varied that comparisons are complicated. Similarly she noted that claims of unlawful discrimination from unsuccessful candidates may arise, resulting in expensive compensation awards.

Martin Tiplady, Human Resources director at the Metropolitan Police and a supporter of the use of positive action, insists the Equality Act could still work, as long as employers are firm about their objectives. She also explained that measures such as fast-track training for ethnic minority officers have resulted in a rise in the percentage of non-white officers from 2% to 9.5% over the course of 9 years.

This dispute may be in vain, though, as it was confirmed by Mark Harper, the shadow minster for the disabled, that a Conservative government would not bring in the positive action provision.

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