Most of us can agree that treating somebody unfairly on the basis of their sex, race or disability isn’t acceptable – but when it comes to giving marginalised groups a leg up, opinion is often divided.

Is it justified, for example, to openly advertise for female applicants, or to hire a black candidate over a non-black candidate who is better qualified? Some would say so, believing that a conscious decision to hire minorities is the only way to kick-start a process of diversification, while others would argue that however you dress it up, positive discrimination in recruitment is still discrimination.

Is positive discrimination legal?

No matter your personal view point, the law dictates how much room for manoeuvre employers have in this regard, and makes a clear distinction between positive discrimination and positive action. In short, treating one person more favourably than another because they have a protected characteristic is generally prohibited under the Equality Act 2010, unless it relates to a genuine occupational requirement.

Let’s take a look at what is and isn’t acceptable practice, and the difference between positive action and positive discrimination.

What you can do: Positive action

Under the Equality Act (EqA) 2010, employers are permitted to take positive action in situations where a group of people with a shared protected characteristic (such as gender, race or disability) are disadvantaged or under-represented in connection to that characteristic.

In other words, in cases 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.

It’s important to note that while employers are permitted to take positive action in certain circumstances, they are not obliged to do so.

As of April 2011, positive action can also be exercised within recruitment and promotion in cases where the employer reasonably believes that there is a lack of representation. This allows an employer, when making hiring decisions, to select a candidate from a group that is disadvantaged or under-represented in its workforce if the candidates are of equal merit.

All of this gives employers more scope on the positive action they can take than was permitted under previous discrimination legislation, which limited positive action to “training and encouragement” for under-represented groups, and many employers are taking advantage of these provisions to achieve diversity in their workforce.

High-profile law firm's attempt to reach black candidates criticised as positive discrimination in recruitment

After recognising a disproportion of black lawyers within its ranks, high-profile London law firm Leigh Day has specifically advertised for Afro-Caribbean or African students for its 2020 training programme.

The firm made the decision after consulting with its BAME committee and deciding that it wanted to “do something positive” to encourage more black graduates to apply to become trainee solicitors. It has also provided unconscious bias training for staff to ensure its recruitment and retention policies encourage staff from all backgrounds.

Reaction to the announcement has been mixed, with some praising the the firm’s “brave” efforts to become an inclusive employer, while other have dismissed the initiative, calling it “well-intentioned” but “patronising” and “divisive”.

What you can’t do: Positive discrimination

While positive action is lawful (provided the employer meets the conditions set out in the EqA), positive discrimination, generally speaking, is not. While positive action creates a level playing field to enable people to compete on equal terms, positive discrimination in recruitment occurs when an employer:

  • Decides to hire a candidate purely on the basis of a relevant protected characteristic, regardless of their ability to do the job; and/or
  • Sets quotas to recruit or promote a specific number of people with a protected characteristic.

You might be asking yourself, then, “how is the action taken by the law firm in the above example not positive discrimination?” The answer is that, at this point, the firm is simply encouraging people from a particular ethnic background to apply for its training programme, which is a permitted form of positive action. Provided it bases its recruitment decisions on merit alone, then positive discrimination will not have occurred, but obviously this is a fine line to tread

Although you are not yet their employer, claims can still be brought regarding discrimination in the recruitment process.

So, should more employers be taking positive action?

This is a matter of opinion and a commercial decision for employers to make; however, research revealing that applicants from minority ethnic backgrounds had to send 80% more applications than a person of white British origin in order to receive a positive response from an employer is difficult to ignore.

While it would be grossly unfair to suggest that hiring managers are racist, sexist or otherwise consciously bigoted, even with the best intentions, it can be all too easy for unconscious biases to creep in. To prevent this from influencing recruitment decisions, employers should consider providing training to raise awareness amongst those involved in screening and appointing candidates, establishing set criteria for hiring and promoting employees, and rewarding leaders who actively reflect on their biases and promote diversity within their teams.

All else aside, there are many tangible benefits of a more diverse and inclusive workplace, including improved innovation and creativity, enhanced employee performance and engagement, and reduced turnover. Externally, this can manifest into reputational benefits for the company, resulting in increased profitability. Indeed, research has shown that companies with greater gender diversity in management positions are 21% more likely to experience above-average profits, and those with more culturally and ethnically diverse executive teams were 33% more likely to see better-than-average profits.

I’m looking to take positive action – what’s the first step?

If you reasonably believe that there is a need to increase diversity in your organisation, it’s a good idea to obtain credible evidence first to confirm that there is an under-representation issue and evaluate the extent of the problem. This may involve comparing the proportion of your workforce that is of a particular minority group with national or local statistics. Keep in mind that under-representation 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 assessing the situation first, you will be able to demonstrate that there is a genuine occupational requirement for positive action, and as long as recruitment decisions are always based solely on merit, you will be able to avoid any suggestion of positive discrimination. However, as always, seeking advice from an Employment Law specialist before taking action is the safest way to avoid legal risk.

Professional advice whenever you need it

The safest way to make employment decisions that venture into potentially murky legal territory is to take advice from an Employment Law specialist before acting. Our unlimited, fixed-fee service gives you access to a dedicated professional for practical guidance and reassurance whenever you need it, as well as help with producing tailored contracts, policies and procedures to keep your business on the right track.

For support, call our friendly team on 0345 226 8393.

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