Background
I am an academic, working in an interdisciplinary field. The UK's National Institute for Health Research (NIHR) is a United Kingdom government agency which funds research into health and care (and is the largest national clinical research funder in Europe). It provides funding through several mechanisms -- either "principal investigators" (PIs) apply directly to it, or it distributes funding to universities who can then internally choose how to spend it on individuals. As befits the science at hand, the money can be spent on a variety of objects -- either on staff, equipment, consumables, reimbursing patients, and so on. Some schemes have more or less restrictions on these, and as ever with grant-awarding bodies, they have their own (byzantine) rules to follow.
The NIHR has recently announced a funding scheme to create research professorships in UK universities, in a scheme basically aimed at medical researchers, including both pure-academics and doctors working both in the NHS and carrying out high-level academic research with a partner institution. Under this, universities (higher education institutes or HEIs) are expected to identify one or two individuals to put forward to for funding by the NIHR. The terms of the scheme (link, archive link) explicitly state (emphasis theirs):
A maximum of two nominations will be permitted per HEI for the NIHR Research Professorships (these nominations are separate to the NIHR Global Research Professorships).
The following conditions apply:
- Where two nominees are put forward for consideration for the NIHR Research Professorship, at least one of these must be female;
- Where only one nominee is put forward for consideration for the NIHR Research Professorship, this could be male or female.
If awarded, the university (and NHS trust, if relevant) would substantively employ the individual involved, and the NIHR would reimburse those organisations directly. So, the NIHR does not directly employ, or propose to employ, the successful applicants. Rather, they permit their employment by providing the means for it -- and support their programme of work. If an academic is not already employed by a particular HEI, yet decides to apply with that HEI as a partner institution, then the success of the grant will typically be required to effect their employment at that institution.
The law
It is my understanding that direct positive discrimination for an employer seeking to employ one gender over another is illegal under the Equality Act 2010. Positive action -- "proportionate actions" stopping short of that, e.g. advertising that applications from one gender are especially welcome -- is permitted. Section 159 of the same act permits circumstances under which positive discrimination is legal, which effectively boil down to choosing between two equally qualified applicants. Precedent indicates that "equally qualified" has to refer to a direct comparison between two individuals competing for the same post, not a hypothetical, but not-present, applicant (I believed discussed in this case).
In short, as I understand it, the rule of thumb is that any positive action taken must be proportionate, or appropriate, to achieve what it is setting out to achieve without resulting in people without the relevant characteristic being treated less favourably. Some more specific examples are discussed here.
This is summarised well by the government's own guidance to MPs, which explicitly states that quotas are not lawful:
Section 158 of the Equality Act 2010 builds on existing legislation on positive action and extends it to include other “protected characteristics” such as age and disability.
It allows, but does not require, “any action” to be taken to support those with a protected characteristic, as long as it is a “proportionate means”. Such actions might include training to enable individuals to gain employment, or health services to address their needs. However, it does not permit “anything that is prohibited by or under an enactment other than this Act” – therefore, positive discrimination, such as quotas, continues to be illegal. Section 159 of the Act introduced a new, specific exemption, for positive action in relation to recruitment and promotion. Section 159 permits (but does not require) an employer to take a protected characteristic into consideration when deciding whom to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented – this positive action can be taken only where the candidates are “as qualified as” each other.
My question
I wish to ascertain whether or not the wording specified by the NIHR above is lawful, as I interpret it to require a gender-based quota for employment.
I believe the relevant questions to ask are:
- Does the NIHR have an employer/employee relationship with a successful applicant for the above scheme, despite the fact that the HEI or NHS trust involved is the organisation that will de facto pay them, albeit with money that the applicant secures in their "own right" from the NIHR
- If so, or despite so, does the wording in the above call for applicants fall under the conditions of employment in the Equality Act 2010
- Do the gender requirements of the scheme form a proportionate action to the goals of the NIHR (which I infer in this instance to be increasing the proportion of female medical professors)
- Furthermore, if the wording is a form of positive discrimination, is it lawful under the terms of §159 -- or is it not, because two direct applicants are not compared?
- Therefore, taking all the above points into consideration, is the scheme as posited compatible with gender equality legislation in the UK?
Edit – A related question
Something else that has been proposed recently is the use of gender-split shortlisting, in which women are ranked separately to men. The two lists are then combined to provide the final shortlist for interview. The top woman is compared against the man, and the strongest candidate is added to a final shortlist, with the runner up then being assessed against the second placed applicants in both lists. This process continues until the number of shortlist places have been filled. I cannot help but shake the feeling that this process appears to be designed to create a structural bias in the practice in favour of women, as it is recommended to be used in departments (such as computer science) where the number of female applicants is approximately 10% or below of male applicants. Does this related practice constitute a form of positive discrimination?
Pre-emptive disclaimer: I am very much aware of the plight and fight for gender equality in academia. It is a very large and important topic, but I do not wish to discuss it here -- nor do I wish to inflame opinion or be overly emotive. I am simply interested in whether this scheme has wording that is lawful. If you wish to know, I am in a position where I could apply for these schemes but am unlikely to be competitive for these roles, particularly with the degree of internal competition at the large HEI I would likely apply through. However, the fact that I am male and only two applicants are permitted makes me think that the low probability of success is not worth the (substantial) time required to write the application.
