Positive Discrimination: how to stay within the law

Whether breaking the “glass ceiling” of the board room to see greater female representation or ensuring that Police forces represent the diverse communities that they serve, people often talk about how minority groups are under-represented and many organisations are demonstrating a commitment to improving the situation as part of their pledge to ESG (Economic, Social and Governance).

Organisations are therefore exploring whether they might be able to rely on positive action to improve the diversity of their workforce. But what steps can an employer lawfully take to support this as part of the Equality, Diversity and Inclusion (EDI) strategy?

What is Positive Action?

In the UK, the Equality Act 2010 provides legal protection for nine protected characteristics. They are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

It is important to make a distinction in definition so that employers understand that Positive Action does not mean Positive Discrimination; these terms are often used interchangeably. Positive Discrimination is the act of treating someone more favourably because they have a protected characteristic and is generally unlawful under the Equality Act 2010.

In contrast, positive action, on the other hand, is lawful under the Equality Act 2010 and allows employers to take positive, proportionate steps to help remove barriers people from protected groups face without opening themselves up to discrimination claims. Lawful positive action can be used to meet a group’s particular needs, lessen a disadvantage they might experience or increase their participation in a particular activity.

When trying to achieve positive action, it is possible for there to be unintended consequences because improving the situation of one group may be at the cost of another group, as illustrated in the case of Furlong v Cheshire Police. Mr Furlong, a white heterosexual male, successfully claimed that he had been directly discriminated against on the grounds of sexual orientation, race and gender. Cheshire Police believed they were using positive action to recruit more police officers from underrepresented groups in line with the Equality Act 2010.

Getting it wrong can also bring significant reputational damage. The RAF has recently come under fire and publicly apologised for an alleged “effective pause” in hiring white male candidates in order to meet diversity targets, which the former head of RAF recruitment allegedly said were “impossible”.

Examples of Positive Action

In real terms, employers may employ lawful tactics such as the following, identified by the Equality and Human Rights Commission:

• placing job adverts in specialist publications to target particular groups, to increase the number of applicants from that group
• including statements in job adverts to encourage applications from under-represented groups, such as “we welcome female applicants”
• offering training or internships to help certain groups get opportunities or progress at work
• offering shadowing or mentoring to groups with particular needs
• hosting an open day specifically for under-represented groups to encourage them to get into a particular field
• favouring the job candidate from an under-represented group, where two candidates are equally qualified

The Government guidance gives the following examples of tactics that would be considered unlawful:

• recruiting or promoting a person solely because they have a relevant protected characteristic (without regard to the legal criteria)
• setting quotas (as opposed to targets) to recruit or promote a particular number or proportion of people with protected characteristics irrespective of merit
• requiring that places for those with particular protected characteristics are reserved on interview panels, irrespective of whether there are more suitable candidates excluded who do not have that particular characteristic
• creating schemes to benefit those with a particular protected characteristic, without any evidence that the group in question is at a disadvantage or has different needs

Opportunities and challenges of Positive Action

Creating and maintaining diverse workforces makes good business sense because more diverse organisations tend to perform better (Findings of McKinsey in 2020).

Critics would argue that it is not fair to provide employment to someone because they are essentially the minority, but Positive Action allows employers to redress imbalances in their workforce; for example, with regards to race or gender, the latter of which is frequently in the news with companies being urged to ensure that their boardrooms are more representative and include more women.

Although there’s no legal requirement to have a written ESG strategy or EDI policy, it’s a good way to demonstrate that the organisation takes its legal and moral obligations towards being a diverse employer seriously. If you would like help in preparing these documents, please get in touch as our expert HR Consultants can help.