Natural selection?

The 'equal opportunity' mantra and fear of being accused of discrimination have made some schools and colleges overly cautious when hiring and rewarding staff.

How attitudes have changed since 1939, when Casterton Central School opened with a headteacher and two teachers: one man and one woman.

Six months later the head was teaching alone. The man had joined the navy at the outbreak of war, and the woman had married and so was required to resign.

Such attitudes are almost inconceivable today and the law has played a significant part in changing them.

However, the law is often misunderstood. It has given rise to ritual incantations of 'equal opportunities' and overly-cautious recruitment practices, like asking identical questions to all candidates at interview.

A rational approach is easier to adopt if we remember that the critical issues are anti-discrimination and equal pay for equal work between the sexes.

Anti-sex discrimination legislation does not mean that all staff must be given equal opportunities to apply for any job, or that all jobs on the same level must be paid at the same rate regardless of the market.

It only means that employers must not discriminate on grounds of gender and they must protect staff from sexual harassment.

No Irish, no women

Discrimination is either direct or indirect. The notorious notice: 'No dogs. No women. No Irish. No coloureds.' is direct discrimination.

In these cases, the burden of proof is on the employer to prove that she or he is not in fact discriminating.

In terms of the interview process, a court may recognise direct discrimination through a line of questioning. This is why governors can no longer ask: "Who will get your husband's tea if you have to stay after school for meetings?"

Terminology can also be used as evidence of assumptions that may lead to discrimination: hence the adoption of terms such as 'fire fighter' and 'chair'.

A school that advertises for a principal or a headteacher is more secure than one that advertises for a head mistress or master.

Indirect discrimination is a criterion or practice that has a discriminatory effect, whether it is intended or not. The evidence is usually numerical. For instance, are there more men than women in certain posts or at a certain level?

Once discrimination is found, the employer must justify it objectively by a genuine material factor. For example, in some jobs there is a practical need for physical strength and no equipment can take its place. All employees must meet a test and fewer women than men pass that test.

Similarly, in a recent case an employer successfully claimed at the employment appeals tribunal that a particular job was not applicable to job sharing.

An appeal based on the fact that the firm had not really tried to find a job-sharing partner failed. The tribunal did make the point, though, that such cases are essentially 'fact-driven', so it should not be assumed that a school could automatically behave in the same way.

Equal pay for equal work

Equal pay arises from separate legislation. The essential principle is that women and men should be paid the same when they are either doing work that is identical or that has been professionally evaluated to show that the demand made on a worker under various headings (for instance effort, skill, decision) is the same.

Professional evaluation is crucial to the proof.

Equal pay only applies where workers being compared are employed by a 'single source' which can remedy the discrimination.

This rather convoluted term implies that although teachers in England may be paid under a national pay scheme, the flexibility for individual governing bodies mean that there is not a 'single source' and no comparison can be made between schools.

Nevertheless, a Scottish court has held that a head in one local authority could use a head in another as a comparator. The question has not been raised in the English courts.

The new Equality Bill will impose a duty of promoting sex equality on all public authorities. This will be a proactive duty and will involve setting targets for equality in schools. How this will work out in practice is anyone's guess.

Equality is something that has to be worked at but it is not something that should paralyse sensible decision making. The thing is to understand the principles and to act in the spirit.

By Richard Bird, ASCL legal consultant