Measures to allow positive discrimination outlined in draft equality laws yesterday were condemned as “unworkable” by lawyers, many of whom are advising companies to ignore them.

Marian Bloodworth, an employment solicitor with Lovells, said: “The Government’s plans to promote diversity and fairness at work are laudable but it is not clear that as they stand, the proposals will achieve those aims.”

She said that Lovells, a leading City law firm, had already advised employers to recruit only on merit and not to take account of any other factors.

“How will employers decide where to draw the line when considering whether a particular sex or race is under-represented in the workforce?

“And will employees be able to pursue claims on the basis that an employer should have exercised its right positively to discriminate in their favour?” Ms Bloodworth said.

Pauline McArdle, a partner at Denton Wilde Sapte, warned that the proposed changes could give scope for new claims and for a rise in litigation over discrimination.

“An equally competent/qualified man who is rejected for a job in favour of a similarly capable/qualified woman simply because he was a man has arguably suffered direct sex discrimination,” Ms McArdle said.

“The new law will presumably negate his right to claim discrimination by allowing an employer to choose the woman. Debates are bound to centre on whether the candidates are in fact of equal ability. Particularly for senior jobs, ability can be a very subjective matter.“

The practice could also cause resentment from the equally qualified male/white candidate who has been rejected essentially on grounds of race/sex, experts warned.

Dianah Worman, diversity adviser at the Chartered Institute of Personnel and Development (CIPD) said “businesses could face legal challenges if they are seen to be discriminating positively in favour of certain candidates.”

“Employers will have to show evidence of what they are doing and why - and that people have gone through the same recruitment process.”

Tracy Lacey-Smith, head of employment at SA Law, added that the provision might be divisive.

“I am concerned that positive discrimination may have a negative impact on the workplace, engendering hostility among employees who feel that an individual has only got a job because of positive discrimination.”

But there was a general welcome for the move towards transparency over pay in the workplace.

Audrey Williams, head of discrimination law at Eversheds, said: “The new bill will sweep away the prevailing culture of secrecy that exists in many businesses and organisations over matters of pay.

“While employers won’t have to disclose actual pay figures, this new requirement to reveal the gender pay gap is likely to mean that more employers will choose to deal with matters of pay and remuneration more transparently.”

Although only public sector employers or companies with public sector contracts would have to conduct an audit of pay rates as between male and female staff, there would be a knock-on effect in the private sector, she added.

“Companies should review their approach to the disclosure of pay and remuneration in the light of the proposals. In some cases, adopting a more rigid pay structure based on pre-determined levels of pay and clearer criteria for bonuses may be preferable - and less likely to lead to workplace grievances.”

Proposed measures to outlaw age discrimination in the provision of public services were also welcomed.

Gordon Lishman, Director General of Age Concern, said: “The Government’s decision to use the Equality Bill to outlaw age discrimination is fantastic news.

“It sends a clear signal that ageism should be taken seriously as any other form of discrimination. This legislation will transform the lives of millions of older people by giving them the same opportunities to participate in society as everyone else.”

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