Positive Action or Positive Discrimination?
Most acts of discrimination in employment are unlawful under the Equality Act 2010. There are however certain arguments an employer can make to avoid liability, such as if they can show that the alleged discriminatory actions taken amount to ‘positive action’.
An employer may decide to take positive action to assist those who are disproportionately represented and/or suffer a disadvantage due to a protected characteristic. There are however strict criteria that employers must comply with to ensure that any positive action they are taking does not in fact amount to ‘positive discrimination’. This particular issue was recently brought into the spotlight following an inquiry into a recruitment drive implemented by the RAF, under which it has been held that 31 male recruits were discriminated against.
In an attempt to make the RAF more diverse, an order was made to fast-track female and ethnic minority recruits into training slots. This ultimately led to the resignation of the head of recruitment due to their concern that the order amounted to discrimination under the Equality Act 2010, rather than positive action. The concerns raised by the head of recruitment and their decision to resign resulted in an inquiry into the recruitment drive which ultimately revealed that the RAF’s decision to fast-track ethnic minority and female recruits was discriminatory. It is thought that around 161 ethnic minority and female recruits were fast-tracked onto initial training as part of the recruitment drive, largely by reason of their protected characteristic rather than true merit.
Whilst it is clear that the RAF’s intention was to improve diversity by giving priority to recruits who are disproportionately represented across the force, this case shows how important it is to ensure that the impact of any policies or other mechanisms implemented on the basis that they are promoting diversity comply with the legislation and do not result in the discrimination of others.
What positive action in recruitment and promotion can employers lawfully take under the Equality Act 2010?
Section 159 of the Equality Act 2010 confirms that an employer may decide to take positive action relating to recruitment and/or promotion if it reasonably thinks that employees or prospective employees who share a protected characteristic suffer a disadvantage connected to the protected characteristic or have disproportionately low participation in an activity.
The aim of positive action in recruitment and promotion is to overcome or minimise the disadvantage experienced and/or encourage participation in an activity with low participation from those who share a protected characteristic. If an employer is considering taking positive action in relation to recruitment and promotion, the following points should be considered:
- In recruitment, both candidates must be of equal merit in relation to the specific role they are applying for. If an employer is faced with a tie-break between two prospective candidates, the employer must determine if both candidates are of equal merit before considering positive action.
- An employer should not have a policy confirming that those who share a protected characteristic will be treated more favourably than those who do not share it (as was the position in the RAF matter)
- Any positive action taken should be a ‘proportionate means of achieving a legitimate aim’.
An employer may also take general positive action in relation to all other aspects of employment, such as training opportunities. This article is however focused primarily on positive action and how this applies during recruitment and promotion.
On the 17 April 2023, the Government released guidance for employers who want to use positive action to widen opportunities in accordance with the Equality Act 2010, the guidance can be found via the following link:
https://www.gov.uk/government/publications/positive-action-in-the-workplace-guidance-for-employers
How can we help?
Positive action can be taken by employers to improve diversity amongst their workforce, it is however important for employers to ensure that any positive action taken is lawful and does not result in the positive discrimination of others. For any further information or advice relating to positive action or discrimination generally, or if you have a query on another area on employment law, please contact our Employment Law Team on 01246 555 111 or contact:
Amy Hallam, Head of Employment 0114 3496989 or email amy.hallam@brmlaw.co.uk
Ellie Leatherday, Associate 01246 564002 or email ellie.leatherday@brmlaw.co.uk
Jade Taylor, Trainee Solicitor 01246 564 058 or email jade.taylor@brmlaw.co.uk
