Questions remain over how employers will determine whether two candidates are equally qualified following publication of the government’s equality strategy, according to Richard Brown, partner at law firm Osborne Clarke.

On 2 December the government published a new equality strategy, setting out its approach to tackling inequality. Among its aims are to ‘work with business to develop a fairer and more flexible labour market that draws on the talents of all and builds a strong economy’.

Businesses that are currently getting to grips with the Equality Act 2010 may take some relief from the fact that the initial focus is on the promotion of equality through the encouragement of transparency and behavioural change, as opposed to more legislation. 

For example, the government is proposing to work with regulators and business trade organisations to ‘shine a light’ on those who are promoting equality well and those who are not. The government will also work with private sector businesses to develop a voluntary scheme for gender pay reporting in the private and voluntary sector as a potential alternative to imposing compulsory reporting proposed under the Equality Act 2010.   

The equality strategy thankfully contains very few surprises, many of the proposals having already been the subject of previous announcements. The strategy confirms the proposal to extend the right to request flexible working to all employees (the forthcoming extension in April 2011 merely extends the current right to request to include employees wishing to care for children aged 17). 

Businesses may, however, be less thrilled by the fact that the government remains committed to introducing a ‘new’ system of flexible parental leave. This is despite the fact that from next April legislation is already in place providing that fathers will be able to take additional paternity leave where a mother returns to work before exhausting her maternity leave entitlement. 

The biggest impact for businesses is the confirmation that from April, the controversial right under s159 of the Equality Act 2010, enabling an employer to take positive action in recruitment, will come into force. The right which enables an employer to select a candidate from an under-represented group when faced with two or more candidates of equal merit has been widely criticised. Questions remain as to how an employer will determine whether two candidates are equally qualified. However, what is clear is that the use of ‘quotas’ or positive discrimination will not be permitted.

While there is perhaps not much ‘new’ in the strategy that businesses were not already anticipating, the strategy does emphasise the government’s commitment to certain measures and in some cases its timescale. 

A New Year’s resolution for all businesses must be to get on top of employment matters before April when to top off those developments highlighted above, employers will also have to ensure they have appropriate procedures in place for the purposes of the Bribery Act 2010 and grapple with the difficult issue of how to retire employees (if at all) if current proposals to abolish the default retirement age and the statutory retirement procedure go through (the strategy confirms that a response to the consultation on this thorny issue will be issued before the end of 2010). 

While the strategy cannot be faulted for its long-term aims of building a fairer and more flexible labour market, it can only be hoped that all these measures will not detract businesses in the short term from the difficult climb back to economic stability.