by Charlotte Bate Director, MAD-HR
Positive discrimination
We all recognise the importance of having a diverse workforce and how embracing a culture of diversity and inclusion makes good business sense in today’s climate.
The subject has in fact been a high-profile issue for decades, resulting in several policies, laws and initiatives being introduced to ensure minority groups have equal opportunities when applying for jobs or promotions.
Whilst we know that the UK workforce is much more diverse than it was in the past, there is still a push for companies to continuously offer opportunities to all of their employees.
However, companies need to tread with caution to avoid accusations of positive discrimination, particularly when recruiting new talent. It can in fact be very easy to fall into the realm of positive discrimination.
What is positive discrimination?
Positive discrimination is the process of increasing the number of employees from minority groups in a company or business, which are known to have been discriminated against in the past.
Positive discrimination also includes setting quotas or benchmarks in the recruitment process or promoting a specific number of people within a minority group.
Put succinctly, positive discrimination is when employers give preferential treatment to people with a protected characteristic rather than due to their suitability.
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 and applies to both recruitment and promotion. For example, it would be unlawful for an employer to recruit a candidate because they have a relevant protected characteristic, rather than because they are the best candidate for the job. Although more likely to be seen during the recruitment phase, we also see cases of positive discrimination throughout the entire employee life cycle., e.g., when making promotion decisions.
There are some 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 positive action?
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 and promote equality of opportunity.
The major difference with positive discrimination is that positive action does not negatively affect other groups.
Positive action is allowed where a company reasonably thinks that a protected group is underrepresented or faces disadvantage.
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.
An employer can take positive action if the employer reasonably thinks that people with a particular protected characteristic suffer a disadvantage connected to the characteristic, have different needs, or are disproportionately underrepresented.
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 firstly 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 a particular minority group 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 like London that will have a more diverse local population.
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.
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