Whilst we know that the UK workforce is much more diverse than it was in the past, there is still a push for every employer to create a workplace that promotes inclusion, equality, and diversity.

However, companies need to tread with caution, as even with the best intentions, employers can accidentally fall into the realms of positive discrimination.

What is positive discrimination?

Positive discrimination in the workplace is when employers give preferential treatment, often seen during the recruitment or promotion process, to people with protected characteristics, leading to unlawful discrimination under employment law. For example, it would be unlawful for an employer to recruit a candidate based on their protected characteristic, rather than their suitability, capability, and skills for the role.

Examples of positive discrimination

  • Setting quotas to hire a specific number of people based on a protected characteristic or promoting a specific number of people within a minority group.
  • Promoting female executive managers, believing it promotes equal job opportunities for women, neglecting male candidates who are more or equally qualified. This is positive sex discrimination.
  • Hiring more candidates from ethnic minorities to boost diversity, over a more qualified non-BAME employee. This is positive racial discrimination.
  • Promoting an underqualified employee to a managerial position as they’re considerably younger than the rest of the managerial team. That’s positive age discrimination.
  • Hiring a homosexual candidate over a heterosexual candidate because the manager believes this minority group has faced too many social hardships, therefore basing their decision on personal reasons, rather than the work capabilities of the heterosexual person. This is positive sexual orientation discrimination.

Is positive discrimination legal?

No – in the UK, positive discrimination is illegal under the Equality Act 2010 as it does not give equal treatment to all.

This is because positive discrimination is still discrimination.

The act states you cannot discriminate against someone based on nine protected characteristics:

In discrimination cases, the time limit within which claims must be lodged is three months less one day from the act or acts of discrimination taking place.

There are some (very limited) circumstances where selection must be limited to specific groups such as occupational exceptions; for example, a women’s refuge can apply a requirement for its staff to be women. Very often, employers will confuse positive discrimination with positive action, but they are not the same thing and are very different in key areas.

What is the difference between positive action and positive discrimination?

Positive action is about creating a level playing field to enable people to compete on equal terms. It describes a range of measures which aim to eliminate unlawful discrimination, remove barriers and promote equality of opportunity.

The major difference with positive discrimination is that positive action does not negatively affect other groups.

Under the Equality Act 2010, employers can take positive action to support those from under-represented groups, to help them overcome any disadvantage when competing with other applicants or applying for development and training.

What action can be taken?

An employer can take any action provided that it is a proportionate means of achieving the aim of:

  • enabling or encouraging people who share the protected characteristic to overcome or minimise that disadvantage;
  • meeting those needs, or;
  • enabling or encouraging people who share the protected characteristic to participate in that activity.

Proportionate action

The action must always be a proportionate means of achieving the aim.

If employers reasonably believe that there is a need to increase diversity in their organisation, they should first obtain credible evidence to confirm that there is an underrepresentation issue and evaluate the extent of the problem.

This may involve comparing the proportion of the workforce that is of particular minority groups with national or local statistics. However, it should always be considered that underrepresentation will look different for organisations in more rural areas than those in large cities.

By first assessing the situation, employers will be able to demonstrate that there is a genuine occupational requirement for positive action.

In summary

It is vital that employers comply with current UK laws and understand the difference between positive discrimination and positive action.

Where there is a clear imbalance of opportunity, employers can take proportionate measures to address the disadvantage and encourage participation without leaving themselves exposed to discrimination claims from individuals who don’t share the relevant protected characteristic.

Finally, it is important to note that while employers are permitted to take positive action in certain circumstances, they are not obliged to do so. Additionally, provided an employer bases its recruitment decisions on merit alone, then positive discrimination will not have occurred – but obviously, this is a fine line to tread.

If you have any questions, or you need help with a similar situation in your business, call MAD-HR on 01473 360160 or get in touch using our contact page.