There are legitimate steps you can take to ensure a more diverse workplace, but it’s important to understand what amounts to positive discrimination as well as how it differs from positive action.
Defining positive discrimination
Positive discrimination is the act of favouring someone based on a ‘protected characteristic’.
The protected characteristics are set out in the Equality Act 2010 as:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sex and sexual orientation
An example of positive discrimination is to hire or promote someone with a disability to increase the number of people with disabilities in the workforce, despite another candidate for the job being better qualified.
Treating someone favourably because of a protected characteristic is normally prohibited and regarded as discriminatory; when you positively discriminate in one person’s favour, by default, you discriminate against someone else.
Setting quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic can also give rise to discrimination for the same reason.
While positive discrimination is often thought of in respect of recruitment practices, it is not limited to this. The rules can be applied equally to promotion or other employee opportunities.
Exceptions to restrictions on discriminatory practices
An occupational requirement
There are some (very limited) circumstances where selection must be limited to specific groups. For example: at a women’s refuge, employees must be female due the sensitivities and issues surrounding the role.
Positive action is different to positive discrimination. Under the Equality Act 2010, you can take positive action to help under-represented groups who share protected characteristics overcome disadvantages or to remove barriers to employment.
If an employer offers a job to someone specifically because they are from a marginalised community, although a different candidate was better qualified, this amounts to positive discrimination and is not allowed.
However, if an employer advertises a job within publications targeting specific communities or runs training events and workshops that help individuals from certain communities overcome barriers preventing them from applying for particular positions, or encourages them to do so, these could be examples of positive action, which is permissible.
Positive action of this type must be proportionate and reasonable, while allowing employers to take steps to help employees or job applicants where:
- They are potentially at a disadvantage because of a protected characteristic,
- They are under-represented in a company or organisation, or participation is disproportionately low, because of a protected characteristic,
- They have specific needs connected to a protected characteristic.
Positive action can also be taken in these cases by treating a person with the relevant characteristic more favourably than others in recruitment or promotion, provided the person with the relevant characteristic is ‘as qualified’ as those others.
Employers: be aware of the differences
There is a fine line between positive discrimination, which is unlawful, and positive action, which is permissible.
It will hardly ever be the case that one person is exactly ‘as qualified’ as another, and it is very easy for positive action to look like positive discrimination.
We would strongly advise speaking to a legal expert before embarking on either course of action.
The consequences of positive discrimination and positive action
Not only is positive discrimination unlawful; it can also generate resentment within the workplace.
If an employee feels they have been treated less favourably (e.g. passed over for a promotion or opportunity) because of a protected characteristic, they may also decide to bring a claim for unlawful discrimination in a tribunal.
The opposite is likely to be true with positive action, which often improves job satisfaction and loyalty.
Understanding positive discrimination and positive action
The difference between positive discrimination and positive action is not always easy to identify. Putting in place a clear policy relating to recruitment and promotion is essential.
If you would like to discuss the best way for your organisation to take positive action, concerned about a potential claim in respect of positive discrimination, or you are an employee who feels they have been discriminated against, please get in touch. Our team of experienced employment law solicitors are on-hand to help.