Nicola Tager, a solicitor in Harbottle & Lewis' Employment Group, on why the ‘Rooney Rule’ could violate UK anti-discrimination laws.
Despite the wealth of talented black British footballers, Chris Hughton (Birmingham City - pictured) and Chris Powell (Charlton Athletic) are the only black managers at the 92 teams of the English Premier League and Football League.
The Professional Footballers’ Association (PFA) has this week been consulting over adopting the ‘Rooney Rule’ in the UK, which would oblige clubs to interview at least one black candidate whenever a manager’s role became available. [Note: the rule has nothing to do with Wayne - it was named after Dan Rooney, the owner of the Pittsburgh Steelers, who championed its adoption in the US.]
The PFA’s commitment to exploring ways in which it can achieve a greater number of black managers in football is entirely legitimate and laudable, and it presumably wants a policy, rule or code of practice to this effect to be adopted by the individual clubs or even at English Football Association level.
However, in so far as the PFA hopes to introduce a comparable requirement in the UK – namely that a certain minimum number of black candidates must be interviewed for each managerial role that becomes available - such a quota is arguably unlawful under the UK Equality Act 2010. Save in very specific circumstances, the Equality Act prohibits employers from treating job applicants more favourably on the grounds of their race, and the other “protected characteristics” such as age, sex, sexual orientation, religion and disability.
The Equality Act should, however, allow clubs and governing bodies to put in place measures to encourage more black people to participate at managerial level, provided that the club reasonably thinks that their participation is disproportionately low. This is known as “positive action”. Whilst these provisions would not enable clubs to set a quota for interviewing black applicants - as the Rooney rule does - there is nothing to lose and everything to gain from clubs considering a wider pool of talent that includes black candidates.
Permissible positive action could also include setting “aspirational targets” to increase the numbers of black candidates interviewed for management positions and providing career mentoring and subsidised training - including certification - which is geared towards attracting racially under-represented groups into manager roles.
