When is positive action not positive action? Exploring the conceptual meaning and implications of the tie-break criterion in the UK Equality Act 2010

Purpose – The purpose of this paper is to explore the claim that the tie-break criterion introduced under the Equality Act 2010 is not really positive action as is claimed by its government sponsors. It evaluates this claim by locating the tie-break into equal opportunities theory, taking into account merit considerations, and reviews its potential implications. Design/methodology/approach – A conceptual discussion of the tie-break. Findings – The paper concludes that the tie-break is not positive action, nor is it positive discrimination. It employs the framework established by Forbes (1991) and attempts to locate it in theoretical discussions of the need to refine merit to take identity characteristics into account. While it could serve to make a more sophisticated approach to merit possible it fails to achieve its implicit potential in this regard. Research limitations/implications – The paper is conceptual and will benefit from empirical support in the future. Practical implications – Practically, the tie-break promises to add some greater clarity to the muddled understanding of equal opportunities and diversity that underpins much policy and legislation. As a result it will arguably prove hard to implement and will carry other associated problems. Social implications – Socially, the tie-break, mis-represented as it currently is, promises to create greater uncertainty around the nature and purposes of equality of opportunity. Consequently, it could exacerbate tensions and hostilities and promote significant resistance to “equality” measures. Originality/value – This paper is an original conceptual piece that will shine a light on an important legal innovation. The tie-break is not what it is described to be and carries both potential and threat for advocates of equality of opportunity. In pursuing socially significant outcomes of this type, conceptual accuracy and transparency are vital, and this paper contributes to this endeavour.