The question of whether positive discrimination is the way to help women shatter the glass ceiling has been reopened as part of a debate on how our sex equality laws should be updated.
This follows a European Court of Justice (ECJ) ruling that using gender as a "tie-breaker" to help women achieve promotion to grades where they are under-represented is permissible under Community law.
While the ECJ's decision in Marschall v Land Nordrhein has no legal effect in the UK because it was not mandatory, it has been hailed as a significant victory for women.
Here, the position remains that positive discrimination is allowed only in very limited circumstances, such as training, and it is illegal under the Sex Discrimination Act 1975 to recruit, select or promote someone on grounds of their sex.
At the same time, the complexities of our sex discrimination and equal pay laws, which date back more than two decades, have led to protracted litigation, the latest involving test cases on pension rights for part- timers in the House of Lords and maternity rights in the Court of Appeal.
It is now time, according to the Equal Opportunities Commission, to introduce a new "super law" which would roll all the sex equality and anti-discrimination measures into one comprehensive statute.
Over the next three months, the commission is seeking views on how to produce an effective legal framework which would guarantee sex equality as a basic human right. The proposals include giving industrial tribunals stronger powers, making employers responsible for reviewing pay systems and publishing the results, improving legal rights and remedies for pregnant women and extending protection to gays and transsexuals.
The EOC's consultation document, "Equality in The 21st Century: A New Approach" also asks whether the new law should permit positive discrimination in employment in the light of the Marschall judgment.
The case goes back to February 1994, when Hellmut Marschall, then a 39- year-old teacher at a German comprehensive school, applied for promotion but was told the job was to be given to a woman. Under a provision of German law, a female candidate applying for promotion to a public sector grade, where women are under-represented, is given priority over an equally qualified man unless there is some specific factor, which is not in itself discriminatory, that tilts the balance in his favour.
Mr Marschall challenged the provision and the case ended up in the ECJ in Luxembourg. No one thought he could lose. Two years ago, a German civil servant, Eckhard Kalanke, won a similar case in Luxembourg against his employers after the judges decided he had been at the receiving end of "automatic job selection" which had shut him out from promotion.
However the all-male court sitting in the Marschall case argued that certain deep-rooted prejudices and stereotypes about the role of women in working life still persisted. This meant that, all things being equal, men tended to get the job.
So, giving priority to the female candidate was a way of restoring the balance and was not contrary to Community law - as long as all candidates were objectively assessed, irrespective of sex, and women were not given automatic, unconditional preference.
The case divided the EU member states. The European Commission, Spain, Austria, Finland, Sweden and Norway supported the German provision as a way of restoring the balance to labour markets.
The UK and France, on the other hand, argued that giving female candidates priority was against Community law, because it sought to impose equality of representation rather than to promote equality of opportunity.
A statement on the UK's own position on positive discrimination was quoted from the industrial tribunal hearing in 1996 into the lawfulness of all- women short lists for selection to the Labour Party (Jepson v the Labour Party). The tribunal decided: "It may well be that many would regard [redressing the imbalance between the sexes in the House of Commons] as a laudable motive but that is of no relevance to the issue of whether the arrangement as applied to the facts before us results in direct unlawful sex discrimination against the two male applicants."
For Janet Gaymer, head of employment law at the solicitors Simmons & Simmons, Marschall was an "absolutely historic decision which has changed the face of discrimination law".
While Marschall may have no legal impact here, it has to be seen as part of a wider picture, says Ms Gaymer.
"One of my guesses is that if the UK law is going to move anywhere it will be in the direction of the American model of affirmative action. However, it is debatable whether we are ready for that yet. There is also too much on the Government's plate at the moment for any change to be a priority."
She believed that the EOC's proposals for consolidating and clarifying sex equality legislation would be welcomed "absolutely" by employers.
"One judge described our legislation on equal opportunities as worse than the worst excesses of a tax statute. Even lawyers quake at fathoming its depths - what price the lay person?
"However, with the introduction of the Convention on Human Rights and a fundamental reassessment of the role of commissions such as the EOC, the Commission for Racial Equality and the proposed disability and human rights commissions, the Government is likely to want to take a long, hard look at the whole picture of discrimination rather than just at gender- related issues," she said.
Karen Seward, head of employment law at Pinsent Curtis's London office, said that about 40 per cent of her work involved sex discrimination, including harassment and maternity queries.
"What the EOC appears to be promoting is a more positive culture of anti- discrimination measures. However, while simplification of maternity rights, for instance, would go down a storm, some of the EOC's other ideas, such as the mandatory reinstatement or re-engagement of someone found to have been discriminated against, would be much less palatable."
However, she found the question of positive discrimination an anathema - "promoting anyone at the expense of anyone else on the grounds of sex is an unattractive proposition, but it is good to have a debate about the issues involved."
Michael Rubenstein, editor of the Industrial Relations Law Reports, said that one reading of the Marschall case was that if it were possible to prove the premiss that equally qualified women tended not to be promoted because of discrimination, then it should be possible to provide a remedy by strengthening anti-discrimination law rather than by allowing a short cut round it.
"Positive discrimination is not a path we have gone down in the UK," he said. "We are not used to this kind of group remedy concept as being a way to promote change. We have tried to eliminate barriers through individual litigation and access to tribunals. The German system would be regarded as fairly crude by people in this country."
Alan Lakin, chief legal adviser to the EOC, said the commission had been against positive discrimination since its inception.
However, in the light of the Marschall ruling and the proposal to amend Community law on equal pay to allow some positive compensation for past discrimination, the EOC felt it was right to ask whether the public and employers wanted similar measures introduced here.Reuse content