Making a change – positive discrimination in employment

In recent months, the Black Lives Matter movement has gained impetus and wider understanding in our society. We see the tragic events in America that have caused black people to lose their lives at the hands of the police. At home, high profile black people have spoken about the distress suffered as a result of stop and search.

As individuals or organisations we may feel that the change needed to society and institutionalised racism is “too difficult” or that our actions would be insignificant. But that misses the point, that institutionalised racism is all our responsibility, and we can all play our part to undo centuries of white privilege.

In the employment sphere, the Equality Act 2010 provides a lawful mechanism to facilitate change in our workplaces. We all know that it is unlawful to discriminate against someone because of their race, whether that be their colour, nationality, or ethnic or national origins. This principle also means that positive discrimination is unlawful. However, the legislation allows employers to take positive action.

Positive action is applicable in the following circumstances:
  • Persons who share a protected characteristic suffer a disadvantage connected to the characteristic.
  • Persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or 
  • Participation in an activity by persons who share a protected characteristic is disproportionately low.
In such circumstances, an employer is allowed to take positive action in the following ways:
  • Enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage identified.
  • Meeting the needs identified; or
  • Enabling or encouraging persons who share the protected characteristic to participate in that activity

The only caveat is that the action must be a “proportionate means of achieving a legitimate aim”. It is important therefore that employers clearly identify what they’re trying to achieve, for example addressing under-representation from the BAME community, and ensure that the steps they intend to take to resolve this under-representation are proportionate. Proportionality is a balancing act, to ensure that the disadvantage suffered by those not in the under-represented group goes no further than is necessary. Essentially, employers need to ask: is there a better way to achieve our legitimate aim.

The Equality and Human Rights Commission provides detailed guidance on positive action, which can be found here. These examples include:
  • Reserving places on training courses for people with the protected characteristic, for example, in management.
  • Providing support and mentoring.
  • Creating a work-based support group for members of staff who share a protected characteristic who may have workplace experiences or needs that are different from those who do not share that characteristic.
  • Setting targets for increasing participation of the targeted group.
  • Targeting advertising at specific disadvantaged groups, for example, advertising jobs in media outlets likely to be accessed by the target group.
  • Providing opportunities exclusively to the target group to learn more about particular types of work opportunities with the employer, for example internships or open days.
  • Providing bursaries to obtain qualifications in a profession for members of the group whose participation in that profession might be disproportionately low.
  • Targeted networking opportunities.
  • Working with local schools and FE colleges, inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the organisation.
  • Providing mentoring to school or university students

These examples show that we can put simple systems in place to make access to our workplaces easier and increase diversity in our workforce.

In addition to this general positive action, the Equality Act 2010 also permits an employer to take positive action in relation to recruitment and promotion. Where an employer finds that it has two candidates who are equally qualified, they can choose to recruit or promote the candidate from the under-represented group. As with the more general positive action.

An employer must be able to demonstrate:
  • Persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
  • Participation in an activity by persons who share a protected characteristic is disproportionately low.

In addition, the positive action must be a proportionate means of achieving a legitimate aim.

The important point to note is that the candidates must be equal in every respect. It is discriminatory (and therefore unlawful) to promote an underqualified candidate simply because of under-representation in the workplace. It is equally discriminatory (and therefore unlawful) to offer an interview to all BAME candidates (for example) regardless of their qualifications.

Now, it may be observed that the restrictions described above simply reinforce discrimination suffered by BAME individuals, the argument being that they are they are less likely to have high educational attainment due to the prejudice suffered in the education system. However, to address this we need to consider whether a particular qualification is really necessary, or whether suitability for the role can be demonstrated in other ways.

In undertaking a critical review of your organisation’s recruitment processes, adopting the approaches described above, and thinking creatively about inclusion and diversity, we can play our part in undoing the disadvantages suffered by generations of BAME people; it might not be quick, but it is worth it.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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