Positive Discrimination and Positive Action

Discrimination is especially common in the workplace setting and it is thus important to be able to identify and be aware of one’s rights regarding it. This article will detail the laws surrounding positive discrimination in the UK.

Positive discrimination

Positive Discrimination is when an employer gives preferential treatment to people with a protected characteristic rather than due to their suitability. It is not legal in the UK as it is still a form of discrimination. Any consideration of protected characteristics (age, disability, gender reassignment, marriage, civil partnership, pregnancy, race, religion or belief, sex or sexual orientation) that an employer makes and applies to recruitment or promotion will breach the Equality Act of 2010.

Example of Positive Discrimination

An example of positive discrimination to further elaborate the idea is employers having a quota on hiring a specific number of people based on a protected characteristic or promoting a specific number of people. Simply because they share a protected characteristic or hiring a female candidate in favor of a more suitable male candidate because to make up for a lack of representation in the organization. The last example is a more complicated one but would still be considered positive discrimination until the employer can show it was a proportionate means of achieving a legitimate aim.

Any unconscious bias may be avoided during recruitment by employers by making the requirements of the job clear and why these skills are important to the role. The requirements must be easy for people from different backgrounds to fulfill. During the creation of the job advert, skills requirements must be focused on, not any characteristics. Anonymizing applications will additionally remove the possibility of any bias to do with protected characteristics.

This type of discrimination is generally prohibited under the Equality Act 2010 unless an occupational requirement applies. This is a limited exception to the prohibition on discrimination in employment. Discrimination based on a person’s disability is allowed, and may sometimes be required if there is a duty to make reasonable adjustments. Action by an employer to assist protected groups that are disadvantaged or under-represented in a particular job is permitted.

There are a limited set of circumstances in which it is lawful to require a job applicant or worker to have a particular protected characteristic, however, this is quite rare. The Equality and Human Rights Commission guidance uses the example case of a women’s refuge requiring all members of staff to be women.

The UK’s strict laws on positive discrimination make it difficult to get away with positive discrimination at Stage 1 (recruitment). However, there may be cases of such discrimination in other situations such as during dismissal, determining employment terms and conditions, pay and benefits, promotion and transfer opportunities, training, and redundancy. Positive discrimination remains illegal here too and must be reported.

Protected Characteristics

The Equality Act defined these specific characteristics that are not to negatively or positively affect anyone’s chance of getting a job, an education, a house, or a service.

These are – age, being or becoming a transsexual person, being married or in a civil partnership, being pregnant or on maternity leave, disability, race including color, nationality, ethnic or national origin, religion, belief or lack of religion/belief, sex, sexual orientation.

Positive Action

Positive action is about taking specific steps to improve equality such as by a workplace actively encouraging specific applicants or groups to apply for job roles. Under the Equality Act 2010, employers may take positive action to support under-represented groups and help them overcome any disadvantage when competing with other applicants. The s.158 and 159 of the Equality Act 2010 set out conditions that must be met in order for the action to be considered positive action. Positive action differs from discrimination as it does not negatively affect other groups and during the recruitment process, suitability and experience not any protected characteristics, are considerations.

The Equality Act 2010 Section 159 which introduce the concept of positive action, created a new rule, where if an employer runs a recruitment exercise and is faced with a choice between equally qualified candidates, where one or more of the candidates possesses a protected characteristic and people with the relevant protected characteristic are underrepresented in the role they are recruiting for, the employer may, if they would like, lawfully prefer the applicant with the protected characteristic. In other words, these provisions allow the protected characteristics of a person to act as a tie-break.

Positive action is a way of changing society by making it more equal by ensuring measures are taken to support the recruitment and promotion of underrepresented minorities. Employers can lawfully actively encourage people with protected characteristics to apply to their company. The Employment: Statutory Code of Practice, which comes straight from the Human Rights Commissioner, has clear examples such as employing only female staff in a women’s shelter. Positive action is different from positive discrimination in that it does not negatively impact other groups i.e., organizing an open day for women does not affect other groups.

Positive action could also include an employer taking measures to address any imbalance within the company that an employee with a protected characteristic could face. It is designed to encourage and enable members of these groups to overcome disadvantages and avoid discrimination.

Positive action entails hiring or promoting a candidate with a protected characteristic over another provided they are as equally qualified as the other candidate. For this to be legal, the candidate must be of equal merit to the next best candidate, have a characteristic that is underrepresented in the workforce. Or have a characteristic that tends to lead to a disadvantage and does not belong to a group that is usually favored for recruitment by the employer

Positive action is voluntary and the law does not dictate that employers have to favor a candidate based on their background. They may do so if necessary if both the candidates are of equal merit. The difference between positive action and positive discrimination is that the candidate with the protected characteristic cannot be less suitable than the candidates that were not chosen.

Example of Positive Action

An example of positive action is hiring a candidate from an ethnic minority background that is underrepresented in the organization to assist the person from the underrepresented group. As long as this candidate was of equal merit to any other, this is a legal process. The only way to assess candidates’ merit accurately and equally is to measure them against set criteria. This criterion can be determined by the company internally.

However, the scope for positive action, in reality, is narrow. It is not often that there are numerous candidates in the final stages of the recruitment process, with recruiters having no preference at any level between them. Additionally, being equally qualified is not related to exam grades and degree levels. It takes into account soft skills, interests, and personality. Therefore, arguing that these candidates were ‘equally qualified’ can be potentially quite difficult as one would be equating strong hard skills to lesser competence. But a nicer nature and better soft skills.

It is also still to be decided definitively whether being equally qualified is an issue of objective fact or the employer’s subjective opinion. The Employment Tribunal in Furlong v Chief Constable of Cheshire Police [2019] found that the employer’s assessment of equally qualified must be a ‘detailed, reasoned and individual one, not based on a blanket deeming or broad equivalence’ so it might be a risky route to take.

As explained above, hiring an individual who has a protected characteristic that will fill a quota set by the company, despite being far less qualified than the other is illegal. However, employing only female staff in a women’s shelter or organizing an open day for women to raise awareness about the industry are not cases of positive discrimination. The second type is protected under the Equality Act of 2010, which states that some forms of discrimination are allowed if they are needed for the way the organization works and the second example is a case of positive action.