Positive discrimination is widely misunderstood. Regardless of an employer’s motive, it is a form of discrimination and remains unlawful across the UK. What amounts to positive discrimination will depend upon the facts of each case but, it is usually a fine line between what is acceptable positive action and what is illegal discrimination.
Current trends in diversity and inclusion
Many organisations recognise that their workforces are not as diverse as they could be in order to better reflect the society they operate in. This isn’t just a case of demonstrating an employer’s PC credentials – there are recognised business benefits of diversity. Particular sectors such as the media and finance may traditionally have been the preserve of a narrow segment of the community – for all sorts of socio-economic reasons but, the pressure is on to change this to reflect modern attitudes and standars, and change it fast.
With political attention focusing on increasing women in the boardroom and gender pay data exposing the lack of women in high paying, senior roles generally, gender diversity is high on the agenda for many companies. Others are more concerned with racial diversity, particularly in the public sector where gender equality may be more advanced than in some parts of the private sector.
While enlightened employers may be keen to accelerate the pace of change there are no quick fixes and employers who introduce “positive discrimination” initiatives to speed things up could find themselves on the wrong side of the law.
For a recent example of a case where the police were found to have fallen foul of equality law by attempting to enhance the diversity of candidates read our article: Police guilty of discrimination against white, male candidate.
What is positive discrimination?
There is considerable misunderstanding around the term “positive discrimination”. Generally the lay person will understand it to mean giving someone from a disadvantaged group assistance to obtain a benefit – be that a job, a promotion or something else.
Regardless of the motive this is still discrimination which is unlawful under the Equality Act 2010 and EU law (which the UK is still subject to despite the Brexit vote).
Discrimination is discrimination whether you call it “positive” or not. This is because by giving people with one protected characteristic more favourable treatment an employer is treating those without that protected characteristic less favourably and therefore, unless an exemption applies, falling foul of the law by directly discriminating.
There are a couple of exemptions from this strict position worth mentioning. One is where there is a “genuine occupational requirement” which means someone with a particular protected characteristic is required for the job, for example, someone of a certain race to play a part in a play or a certain sex to provide personal care. This is very narrowly interpreted by the tribunals and courts; it must be a real requirement rather than just a preference.
The other exemption to be aware of is in respect of disabled people. In some situations an employer actually has a legal obligation to treat a disabled person more favourably in order to help them overcome their disadvantages in the workplace and a non-disabled person could not bring a discrimination claim based on that treatment.
What is the difference between positive action and positive discrimination?
Confusingly, the law does allow positive action but this is different from and does not go as far as positive discrimination. For example, lawful positive action would allow measures to encourage underrepresented groups to apply for a job but, would not allow certain roles to be ring fenced to be given to them without a competitive interview process.
The law also allows positive action in a so-called “tie break” scenario where two candidates are equally qualified and suitable for a role but one is from an underrepresented group. An employer may, in that situation give the job to that person. This is not likely to be used that often as it is so restrictive in its application.
Employers who wish to speed up the diversification of their workforce are likely to be frustrated by the restrictions currently placed on them by the law, but this is not likely to change anytime soon. Those well meaning but misguided organisations which seek to positively discriminate will be acting unlawfully and could even find themselves in the employment tribunal as a result. For now, the safest option will be to make use of the positive action exemption and accept that this will inevitably slow down the pace of change.
However, once the UK finally leaves the EU, there may be some scope for the law to be changed in this area to make it easier for employers to increase the diversity of their workforces. Read our article: Positive discrimination after Brexit: a brave new world awaits?
If you need help with your recruitment practices to ensure these comply with the law or feel you may have been discriminated against as a result of positive discrimination, speak to one of our employment law experts today.