At a glance
- In this case Sky offered a home installation and engineering training programme exclusively to women in the hope they would later apply for engineering roles. Mr Marsland’s application for a position on the training programme was refused and he brought a claim of direct sex discrimination.
- The Employment Tribunal (ET) found that Sky’s measure was a proportionate means of achieving the aim of encouraging the participation of women as engineers and was lawful positive action under the general positive action provisions at section 158 of the Equality Act (EqA). Mr Marsland’s claim of direct sex discrimination failed.
Background
Sky had identified that females were under-represented in its home service area, with only 2% of its engineers being female. It had established the goal of improving that percentage to 20% by 2020 but had not achieved that. To improve representation of women amongst its engineering workforce it introduced a training programme which was restricted to women to provide them with the skills to be able to apply for engineering roles.
The programme operated for a fixed four-month period, those participating were formally engaged under a contract for that period and paid a salary equivalent to GBP21,000 per annum. Trainees did not undertake any specific duties themselves, there was some classroom training, but the largest element of the training involved them travelling with an engineer and observing them undertake their work.
The programme was operated in areas where it was anticipated that Sky would have a forthcoming need for engineers, and recruitment for engineering roles was undertaken separately involving online tests, videos and interviews.
The Claimant applied for a place on the training programme and was unsuccessful, receiving an email telling him that it was because the programme was open to women only.
The Claimant brought a claim of direct sex discrimination.
The outcome
The ET was satisfied that Mr Marsland had been treated less favourably by reason of his sex than a comparable woman. He was excluded from the training programme purely and specifically because he was a man. However, the ET found that the less favourable treatment could be excused by the application of the general positive action provisions in section 158 of the EqA.
The ET did consider an argument on the part of Mr Marsland that the trainee was a proper role and that the recruitment provisions at section 159 of the EqA actually applied, in circumstances where there was not the required equivalence of qualification between Mr Marsland and a female comparator to enable the tie-breaker exception to apply. Whilst the ET agreed that were was not the required equivalence for the tie-breaker to apply, it did not consider that the engagement of trainees on the programme amounted to recruitment to a job. In doing so it considered the fact that the programme was described as a training programme, operated for a limited period, and involved only training and primarily observation. It did not involve the trainee undertaking any actual work. It found that applying for engineering roles was an entirely separate process and there was no guarantee that any applicant would be successful.
In terms of the application of the general positive action provisions at section 158 of the EA, in the first instance the ET found that Sky had a legitimate aim in that the programme was aimed at encouraging women to overcome the clearly apparent disadvantage and low participation in engineering.
The ET then found that Sky’s actions in operating the training programme for women only was a proportionate means of achieving that aim. It took into account the EHRC Code of Practice, and section 12.17 of that which specifically referred to the disadvantage experienced by women in engineering and that possible action that might be taken to overcome that included providing training opportunities, for example work placements. The ET found that was what Sky was trying to address and had implemented.
Accordingly, the ET held that Mr Marsland’s claim of direct discrimination failed.
“This case is a good example of using general positive action to address under representation in the workforce. It is also a useful reminder that it is important to consider whether a particular situation may fall within the general position action provisions or the recruitment provisions under the EqA – the rules in respect of each are slightly different.”
What does this mean for employers?
Although only a first instance Tribunal decision, this case shows that positive action measures which have a material adverse impact on others may still be lawful. Even with a very clear legitimate aim though, it is still important for employers to ensure that any measures they introduce are proportionate. The case also highlights that it is important that employers consider carefully which positive action provisions may be applicable. Here, the ET found on the particular facts of the case that the situation did not fall within the recruitment provisions under section 159 of the EqA. However, if it had fallen within section 159 the less favourable treatment would not have been lawful as a result of the tie-breaker provision.