Positive action
Positive action refers to measures taken to support or encourage individuals from underrepresented groups to overcome or minimise disadvantages in employment opportunities or to meet their specific needs. It is about levelling the playing field and is permitted under section 158 of the Equality Act 2010 (EqA 2010). Examples include offering targeted training programmes, mentoring for underrepresented groups, or encouraging specific groups to apply for roles where they are underrepresented. Positive action does not involve preferential treatment in the selection process; rather, it aims to equip all candidates to compete on equal terms.
Positive discrimination
Positive discrimination involves treating someone more favourably because of a protected characteristic, such as race, sex, age, or disability, beyond what is necessary to level the playing field. An example of positive discrimination would be hiring a less qualified candidate over a more qualified one solely because the former is from an underrepresented group. Positive discrimination is generally unlawful under the EqA 2010. Recruitment decisions should be made based on merit and not based on protected characteristics. However, there is a narrow exception in recruitment and promotion known as the tie-break provision - this allows employers to choose between equally qualified candidates based on a protected characteristic if that group is underrepresented or faces a disadvantage in the workforce.
Case studies and lessons learned
Turner-Robson and others v Chief Constable of Thames Valley Police
In this case, an Employment Tribunal found that promoting a minority ethnic Sergeant directly to a Detective Inspector role without a competitive process constituted unlawful positive discrimination. The case was brought by three white police officers who were overlooked for the role, which was filled without advertisement or a competitive selection process, aiming to fast-track minority ethnic officers. The Employment Tribunal rejected the Respondent's defence that this was part of a positive action, under S158 EqA 2010, ruling it amounted to direct race discrimination. The officers were denied the chance to apply or be considered, which the Employment Tribunal deemed not a proportionate means to achieve a legitimate aim.
Mr M Furlong v The Chief Constable of Cheshire Police
In the case of Mr M Furlong v The Chief Constable of Cheshire Police, the claimant, a white heterosexual male, was rejected for a job despite performing better in interviews than other candidates, who were hired to improve diversity. The force acted unlawfully in treating lesser-qualified candidates with protected characteristics more favourably. This case highlights the importance of adopting clear and objective scoring and selection procedures to demonstrate a fair and non-discriminatory process.
Royal Air Force (RAF)
The RAF unlawfully discriminated against white men in a recruitment drive aimed at boosting the number of female and ethnic minority employees. Between 2020 and 2021, the RAF set “challenging” targets to boost diversity among female and ethnic minority recruits. To meet these goals, officials were pressured to prioritise 161 ethnic minority and female candidates over white men in the recruitment process. The recruitment practices were found to amount to positive discrimination, which is unlawful, rather than positive action. This case underscores the importance of understanding the difference between positive action and positive discrimination and implementing lawful positive action measures.
Practical steps for employers
Implementing positive action lawfully
To implement positive action lawfully, employers should consider and make a record of the following:
Evidence of need: What evidence is available to show that action is needed?
Goals and actions: What are the main goals and what actions can be used to meet these aims?
Proportionality and reasonableness: Is the action proportionate and reasonable?
Measurement and review: How will progress and success be measured? How long will these measures be needed and when will they be reviewed?
Stress testing positive action plans
The biggest error organisations make is implementing positive action plans without stress testing them first with the right people, including legal, communications, HR, and PR teams. Diversity of thought in creating and implementing these schemes is needed to cast light on the problematic areas. Employers should ensure that any positive action taken is proportionate and based on evidence of need or underrepresentation.
Avoiding positive discrimination
Employers must ensure that their actions do not place other groups at an unjust disadvantage, as this could constitute unlawful positive discrimination. Selection for interview and appointment must be based strictly on the agreed selection criteria and merit alone. Automatically treating all applicants who share a protected characteristic more favourably, or guaranteeing them recruitment or promotion because of that characteristic, would amount to unlawful discrimination.
Benefits of positive action
Positive action in recruitment is a powerful tool for building a diverse, dynamic, and inclusive workforce. It not only benefits the individuals and communities that have historically been underrepresented but also enhances the overall performance of the organisation. Evidence has consistently shown that a diverse and inclusive workplace leads to higher levels of employee engagement and satisfaction.
Employers seeking to rely on positive action in recruitment or promotion decisions should tread carefully and consider the need for equality impact assessments before implementing such policies.
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