Government will introduce right to employ based on race and gender

It had expected not to implement an Equality Act provision that had been closely associated with its predecessor Labour Government but has now said it will become law.

The Equality Act was passed by Parliament before this year's general election and most of it came into force in October. But the Government has said that it will now implement a controversial measure that allows for discrimination in limited circumstances.

Organisations will be permitted, though not required, to favour job candidates who would be likely to suffer discrimination on the basis of their race, gender, sexuality or disability over candidates who would not, but only when they were equally suited to the job.

"This will help employers make their organisations more representative by giving them the option, when faced with two or more candidates of equal merit, to choose a candidate from a group that is under-represented in the workforce," said a statement from the Government Equalities Office. "For example, a primary school that has no male teachers could choose to appoint a male candidate who is of equal merit to a female candidate."

"This does not mean allowing 'quotas' or giving someone a job just because they are a woman, disabled or from an ethnic minority – positive discrimination is not acceptable and remains illegal," said the statement.

"Different organisations face different challenges in promoting equality so if we are to get this right for everybody a much more flexible approach is needed," said equalities minister Lynne Featherstone. "These plans are absolutely not about political correctness, or red tape, or quotas. They are about giving individual employers the tools they need to help make the workplace fairer."

The Government was not expected to implement the measures.

"This is a surprise," said Linda Jones, an employment law expert with Pinsent Masons, the law firm behind OUT-LAW.COM. "The indications had been that the Government had not been that keen on these plans and had kicked them into the long grass."

"It was announced in the context of boardroom appointments, about there not being enough women on the boards of big companies," said Jones. "But at that high level are you really going to get candidates that are equally well qualified?"

Critics of the plan had suggested that the situation of having exactly equally qualified job candidates was unlikely to materialise in real life, but Jones said that it could happen in less high-powered roles.

"You might see this used in a support services company tendering for a public sector contract that is worried that there are not enough people from a particular ethnic background in the workforce," she said. "It might happen when employing cleaners, caterers, ground maintenance staff, where a company might set a target and then employ people from a certain group."

Jones said that the law was unlikely to be a major tool in addressing workplace inequality, but that it could have an indirect effect.

"I don't know whether as a piece of legislation this will improve things, but what it might do is put this on the agenda of organisations to get them to think about why they haven't got women on the board or people from ethnic minorities. It might be useful in raising the issue," she said.

The Government also said that it would ask companies with more than 150 employees to publish details of the pay gap between men and women. That will not be a compulsory measure, it said.