A Scottish Government Consultation on the Draft Gender Representation on Public Boards (Scotland) Bill

Annex A: The EU Legislative Framework

Equality between men and women is a fundamental principle of European Union ( EU) law. It is enshrined in the EU treaties ^[7] and in the Charter of Fundamental Rights of the European Union (the Charter). ^[8] EU directives ^[9] have been issued and transposed in Member States with the objective of securing equal treatment and opportunities for men and women in employment and occupation.

The work-related provisions of domestic equality law, including the concepts of discrimination and positive action, have been drafted to accord with EU equality law, with which they must be consistently interpreted.

Article 23 of the Charter provides that the principle of equality 'does not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex'.

This is also reflected in Article 157(4) of the Treaty on the Functioning of the European Union ( TFEU) and Article 3 of the Equal Treatment Directive ( ETD), which permit the use of proportionate positive action measures in order to prevent or compensate for disadvantages related to gender in vocational activities or professional careers, pursuing the legitimate aim of achieving full equality in practice.

In general, positive action is permitted when people of one gender are under-represented in a sector or company, provided that the measures which are adopted pursue the legitimate aim of addressing the causes of under-representation and that they are proportionate.

The Court of Justice for the European Union ( CJEU) has considered ^[10] situations in which positive action measures can be used in recruiting employees, defining the boundaries between legitimate positive action and unlawful direct discrimination.

To date, the CJEU has decided that positive action measures are an exception to the principle of equal treatment and must be interpreted narrowly because they permit more favourable treatment of particular groups.

In order to be lawful, the CJEU requires that positive action measures:

• are only used in a sector or company in which one gender is under-represented
• cannot displace the requirement to assess objectively and consistently the suitability for appointment of each candidate
• cannot give automatic and unconditional priority to female candidates over male candidates (or vice versa)
• can only be used to appoint on the grounds of gender where candidates are legitimately judged to be of equal merit, and
• cannot be used where the objective assessment of candidates discloses one candidate is even marginally better than another.

Failure to appoint within the parameters of positive action in compliance with these conditions is likely to result in unlawful direct discrimination.