The SDA 1975, prohibits direct10 and indirect11 discrimination, undoubtedly these measures are useful provisions that have helped women retain and acquire employment, as well as encourage women to seek employment in areas that they may not previously have done so. However, the SDA 1975 is concerned with equality of access, not of outcomes and firmly embeds the 'merit' principle. This assumes that if women and other targeted groups fail to secure the most attractive jobs it is because of the disadvantaged groups unsuitability and not because of discrimination.
The SDA makes it illegal for women to be given priority at the point of selection, which would be considered as positive discrimination. Hence, restricting selection lists in several constituencies in the case of Jepson and Dyas Elliot v The Labour Party13, to women only, in an attempt to increase female MP's amounted to positive discrimination and was therefore unlawful. Provision for positive action are also very limited in the SDA 1975, to only allowing employers to provide single-sex training courses for non-traditional areas and encouraging women to apply for jobs in occupations where they are underrepresented, s.
SDA 1975. Furthermore, these provisions in all the circumstances are permissive rather than mandatory, unlike the law in Northern Ireland14 USA15, Canada16, South Africa17, and Australia. 18 British employers are never under a positive obligation to engage in any affirmative action, from the mildest forms of encouragement upwards. Figures from the Department of Employment for the period 1985-93, showed that women made up only 2% of senior managers, 6% of MP's, 8% of senior executives in business and 2 % of general surgeons.
The National Management Salary Survey of 1996 did highlight that the proportion of females in management continues to rise, but at the most senior level women were found to comprise less than 4% of senior directors. 20 The Hansard Society put forward a similar view highlighting there has been some progress for women, however they remain hampered by glass ceilings and hemmed in by glass walls, restricting their earnings and blocking them from reaching the operational roles at the heart of each corporation. 21
Recent statistics from the Price Waterhouse Corporate Register 1999 clearly indicate that over two decades on from the introduction of the SDA 1975, women are still significantly underrepresented at a professional level. For example the Register shows that women made up only 4% of Directors and senior managers in top 2300 UK companies, 18% of Barristers and 9% of Senior civil servants (top three grades). 22 These cross-sections of statistics would indeed appear to indicate that the SDA 1975 has not been effective in ascertaining sex equality in professional employment.
The SDA 1975 would appear to have sent a message to society, women cannot be overtly discriminated against and that they are entitled and need to play an active role in the labour market. Nevertheless, the SDA 1975 has clearly had limited influence in changing social attitudes towards the types of positions that women should hold within the labour market. It is also essential to assess the influence of European Union (EU) law, in this case Article 2 (1)23 and 2 (4)24 of the Equal Treatment Directive 76/207, with regards to positive action.
As EU, law is of supremacy25 over domestic legislation and much of it is of direct effect. 26 The provisions within Article 2 (4) do permit positive action, but only to raise the starting threshold for women. Positive action can only be used to remove obstacles preventing women from having equal opportunities by tackling, for example, educational guidance and vocational training. Positive action may not guarantee women absolute and unconditional priority for appointment or promotion. Thus in Kanke v.
Freie Hansestadt Bremen27, German law giving equally qualified women preference against men in selection for public sector jobs in which women were underrepresented was unlawful under Article 2 (4). 28 However, in the subsequent cases of Marschall v. Land Nordrhein Westfalen29 and Re: Badeck's Application30, it was held that giving priority to the underrepresented sex is legal under Article 2 (4). So long as the national rules do not impose an automatic quota and contain a saving clause, that all candidates will be subject to an objective assessment.
Which will take account of all criteria specific to the individual candidates and will override the priority accorded to the female candidate where one or more of the criteria tilts in favour of the male candidate. This judgement does indicate a more pragmatic approach by the ECJ to the issue of positive action. However, the more radical forms of positive action stated in my introduction are neither permitted nor obliged by EU law.
Therefore, it may be concluded that in this instance EU law has played little role if any at all in eradicating the sex inequalities within the professional labour market of the UK. This seems quite surprising given that one of the fundamental aims of the EC Treaty, as stated in Article 2 is " social protection and equality between men and women". 31 Therefore, can true sex equality within the professional labour market only be attained by introducing a pro-active form of affirmative action as is in operation in other countries?
The Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation set out a design of optimal regulation which could help reduce, if not eliminate, under-representation, exclusion, and institutional barriers to equal opportunity. 32 In their opinion paper the two main strategies were considered practicable and possibly effective, Voluntary self-regulation, which is based on the individual organisation meeting prescribed standards unilaterally without any threat of coercion.