Increasing Diversity Without Discrimination: Positive Action vs Positive Discrimination

The recent RAF case of discriminating against white male recruits, as reported in this BBC article,  has highlighted a tricky area of the Equality Act 2010.

Can employers take positive action?

Well, it’s a yes and no answer.

Employers can, after assessing underrepresented groups in their workforce, take positive action to support, develop and recruit from those underrepresented groups in areas such as:

1. Training
2. Advertising jobs, apprenticeships, internships, work experience etc. in specific communities; and
3. Mentoring

These are all perfectly good measures to encourage recruitment and progression and address disparities experienced in opportunities and skills.

Employers can ‘discriminate’ in only one narrow respect  

In general terms, the only area an employer is able to lawfully select, or recruit, based upon a person’s protected characteristic (for example, race, sex) is where the employer can demonstrate with very clear evidence (again, in general terms) the following:

1. The need to do so i.e., to improve diversity where it is lacking; and
2. That they have equally qualified candidates of both characteristics albeit one of them is from an underrepresented group, and, thus, being equally qualified they may then select or offer to the latter.

Employers cannot, without clear discrimination claims, simply select based on, for example, sex, race or age. There needs to be a clearly identified and assessed equality or diversity issue to address, then a lawfully implemented process to follow to then get to a place to justify positive action - for example, promoting the person from an unrepresented group.  

The challenges and risks of using this tool

What is equally qualified? This is not easy to empirically demonstrate at all and where it is unclear is where the candidate or employee that is not selected from the well-represented group (as argued in the recent RAF cases) may well have a good claim for discrimination. Therefore, employers don’t readily use this tool as it is very risky.

If it is used, then clear evidence to support the need to do so, demonstrating this is the best tool to use, and then further data to show such equivalence to support its use are all needed.

Government guidance – take advice

The UK government has issued guidance on positive selection. Read it here.

We are here to advise you about this complex area of law. If you are considering using such a legal tool, please do get in touch.