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of employees from a particular racial group if in the preceding 12 months the job has been done exclusively by people from another racial group or where the number of ethnic employees are under-represented in the workplace. Where any such preferential treatment is afforded to those of one sex or race, employers should take care to document their reasoning carefully. An example of a case involving positive discrimination is Arnold v Barnfield College (2004). Here, the college had a deliberate policy of encouraging job applications from persons from ethnic minorities. The college appointed Mrs Akhtar who was of Pakistani origin rather than Ms Arnold who was white but had more experience. Ms Arnold brought a racial discrimination claim against the college. She alleged that the college had been affected by ‘unconscious discrimination’ from a desire to improve the proportion of staff from ethnic minorities. The Employment Tribunal found that Ms Arnold had been discriminated against but on appeal the EAT rejected this decision, stating that there had been no discrimination. This was because the college was able to show that it had conducted interviews properly and that it had genuinely appointed Mrs Akhtar because she was found to be the most suitable candidate for the job. The position in relation to EC sex discrimination law is worthy of note here. Article 2(4) of the Equal Treatment Directive permits an employer to use measures designed to remove inequalities ‘which affect women’s opportunities’. For a discussion on ‘positive discrimination’ in this context see: Kalanke v Freie Hansestadt Bremen (1995), Marschall v Land Nordrhein Westfalen (1998), Abrahamsson & Anderson v Fogelqvist (2002). EUROPEAN SEX DISCRIMINATION LAW 2 Discrimination in employment European law has had a major impact on our national sex discrimination law. Many of the sex discrimination cases referred to in this chapter have been referred to the European Court of Justice. In the context of discrimination law, the Equal Treatment Directive has widened the scope of our national law. The Equal Treatment Directive of 1976 establishes the principle of equal treatment for men and women ‘as regards access to employment, vocational training and promotion, and working conditions’. Article 2 of the Directive states that there shall be ‘no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status’. Individuals are able to rely on the Directive in tribunal proceedings but only where their employer is a state authority. This decision stems from the case of Marshall v Southampton & South West Hampshire Area Health Authority (1986). In Foster v British Gas (1991) the European
64 Discrimination on the ground of pregnancy Court of Justice held that state employers include local governments, health authorities, the police force, the post office and nationalised industries. Private-sector workers cannot use the Directive to claim against their employer. However, under the principles laid down in Francovich v Italian Republic (1992), where employees suffer loss as a direct result of the government’s failure to implement the Directive, they may be able to sue the government for compensation. The Directive has also been used to clarify the provisions surrounding retirement and pensions. In the Marshall case noted above the health authority dismissed Mrs Marshall because she had reached