Business Matters, February 2012 – Bellamy Forde comments on the FA wanting to hire an English Manager
Is it discriminatory for the FA to want to hire an English Manager?
With most of England preoccupied with who should succeed Fabio Capello as manager of the England Football Team, there appears to be a growing majority of opinion that the person who is appointed should be English or at least British. Can the FA just seek to hire an English man? Can your business do similar? Bellamy Forde investigates.
Race is identified as a protected characteristic by Section 4 of the Equality Act which defines race as including "colour", "nationality" and "ethnic or national origins". A "racial group" is a "group of persons defined by a reference to race".
Therefore it is clear that identifying a "race" to a particular job or role can amount to discrimination on racial grounds. In the case of job advertisements, it is unlawful to publish or cause to be published an advertisement which invites applications for a job or role which may be determined by reference to race, subject to the genuine occupational qualification defence.
As regards to the engagement of an individual, the Equality Act states as follows:-
"An employer (A) must not discriminate a person (B) -
(a) in the arrangements (A) makes for deciding to whom to offer employment,
(b) as to the terms on which (A) offers (B) employment.
(c) by not offering (B) employment".
So, what this means is that positive discrimination of the sort of which might lead to an English or British appointment as England manager would amount to discrimination.
Can the selection be justified? Broadly speaking, it can.
If an employer can show that the appointment was based upon a genuine requirement or qualification for a particular job, the employer may have a defence to race discrimination.
However, it should be noted that this defence is not a licence to discriminate. The first exception for a genuine occupational requirement applies where the discrimination relates to a determination by the employer as to who to offer employment, a refusal to offer employment or dismissal.
This exception applies where it is shown that "being of a particular race or of a particular ethnic or national origins" "is a genuine and determining occupational requirement" and that it would be proportionate to apply that requirement to the particular case under consideration.
The second exception is known as the genuine occupational qualification. It is only available where the discrimination is in the form of arrangements made for the purposes of determining who should be offered employment or not - whichever the case may be. This is subject to a number of strictly defined circumstances, none of which can be said to apply to the manager's job.