Lynsey Blyth
Posted on 27 Aug 2020

Positive Discrimination or Positive Action – What are businesses permitted to do?

8 minutes and 46 seconds became a grim symbol of police brutality in the US following the murder of George Floyd in Minneapolis in May this year. Whilst the exact time that George Floyd was pinned to the ground by former police officer Chauvin was subsequently thrown into question during Chauvin's trial, one thing that has remained resolute since the world-wide publication of that horrifying video, is that racism is sadly alive and well in 2020.

The video served as a call to arms for many, not only across the US but across the world, including the UK. Amidst a global pandemic, people took to the streets under the banner of the Black Lives Matter movement to both highlight that racism still exists and to boldly state that it would no longer be tolerated. Irrespective of your views on mass gatherings during lockdown, the purpose and message of these protesters was powerful and clear and it thankfully thrust bias and racism into the spotlight.

Although perhaps uncomfortable for some, the Black Lives Matter movement forced us all to reflect on our behaviour and on the behaviour of those around us, revealing pre-existing inequalities and prejudices within society that may have been previously overlooked or ignored. The corporate world did not escape this scrutiny and some were forced to deal with accusations of racism, systemic bias and discrimination.

Although many organisations were quick to adopt the Black Lives Matter movement's hashtag and black out their social media on Black Out Tuesday, the same enthusiasm was not mirrored in their boardrooms. Colour of Power 2020, a publication by Green Park and Operation Black Vote, highlighted that in 2020, only 52 out of the 1,099 most powerful roles in the UK are filled by individuals from minority ethnic communities. That's just 4.7% and not at all representative of the Black, Asian and minority ethnic communities which make up 13% of the UK population (you can access their report here).

Many businesses are attuned to this and are aware that those who turn a blind eye to the issues of inequality, bias and racism could quickly fall behind the curve. Consequently, we are seeing a noticeable increase in the number of businesses reviewing their internal policies and procedures to ensure that these accurately reflect the values of their business. Commendably, the majority of these businesses are actively taking steps to achieve greater diversity within their organisation to better reflect the communities within which they operate.

One approach that can help to improve diversity within the workplace, and one which we are seeing businesses more readily explore, is Positive Action.

This article aims to discuss the legal parameters of Positive Action to assist employers who wish to make a meaningful effort to tackle barriers that may affect groups with 'protected characteristics'.

What is Positive Action?

Positive Action is defined as action that can be taken by an employer to assist protected groups, which are disadvantaged or under-represented in a particular job. The Equality Act 2010 (EqA 2010) sets out the lawful parameters for this action.

The following two Positive Action provisions are found in the EqA 2010:

  1. General Positive Action; and
  2. Positive Action in recruitment and promotion.

Conversely, Positive Discrimination involves treating one person more favourably than another purely on the basis of a 'protected characteristic'. 'Protected characteristics' include race, age, sex, gender reassignment and pregnancy. This is generally unlawful, subject to limited statutory occupational requirement exceptions which are beyond the scope of this article.

  1. General Positive Action

Under section 158 of the EqA 2010, General Positive Action measures can be adopted where an employer reasonably thinks that people who share a 'protected characteristic' are:

  • disproportionately represented in a particular activity;
  • suffer a disadvantage connected to that shared characteristic; or
  • have different needs from people who do not share that characteristic.

When considering whether a situation has arisen where General Positive Action may be appropriate, employers are recommended to keep a written record of the 'protected characteristic' identified. It is beneficial to spend time researching whether there is reliable evidence that supports the belief that the characteristic identified is protected and that those people identified share that characteristic. This may involve employers looking at available online resources or simply reviewing their workforce structure and comparing it with other similar employers in their area or sector.

Once this is done, it is key to ensure that any General Positive Action can be justified as a proportionate means of achieving one of the following legitimate aims:

  • enabling or encouraging persons who share the 'protected characteristic' to overcome or minimise the identified disadvantage;
  • meeting identified needs; or
  • enabling or encouraging persons who share a 'protected characteristic' to participate in a certain activity.

A key point for employers to be aware of is that any action taken must be proportionate. What is deemed proportionate will depend on a variety of factors, including the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them.

A useful tool to which employers can refer is the Equality and Human Rights Commission Employment Statutory Code of Practice (the EHRC Code). Whilst not legally binding, the EHRC Code is an important tool, particularly as the Employment Tribunal must take it into account when considering discrimination claims under the EqA 2010. The EHRC Code clarifies that "proportionate" refers to the balancing of competing relevant factors and these factors will vary depending upon which of the above three legitimate aims the action is based. An employer may first wish to consider whether the action is appropriate to achieve the stated aim and, if so, whether it is reasonably necessary, or if it's possible to achieve the aim as effectively by other means that are less likely to result in less favourable treatment of others.

Again, it is best practice to keep a written record of the decision, clearly documenting the various points that were considered and the rationale for the final decision. This will be helpful if there is ever a need to evidence that the employer put their mind to proportionality.

  1. Positive Action in Recruitment and Promotion

Section 159 of the EqA 2010 permits an employer to use Positive Action where they reasonably think that either:

  • persons who share a 'protected characteristic' suffer a disadvantage connected to the characteristic; or
  • participation in an activity by persons who share a 'protected characteristic' is disproportionately low.

Thus, where either of the above situations arise, the employer may legally select a candidate who has a 'protected characteristic' for a role or promotion because of that 'protected characteristic', if, and only if, they are as equally qualified as the other candidates, who do not have a 'protected characteristic'. The 'protected characteristic' is effectively used to determine the outcome of a 'tie-breaker' situation.

Often employers find it difficult to interpret what is meant by "equally qualified". The explanatory notes within EqA 2010 state that this is "not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job, which could include matters such as suitability, competence and professional performance". It is therefore appropriate for an employer to establish a set of criteria against which candidates will be assessed before they commence the recruitment or promotion process. The EHRC Codes advises that this criteria should take into account "a candidate's overall ability, competence and professional experience, together with any relevant formal or academic qualifications, as well as other qualities required to carry out the particular job".

Irrespective of the good intentions, it is important to note here, that businesses should not have a blanket policy of treating persons who share a 'protected characteristic' more favourably than others. As set out above, when Positive Action can be employed lawfully very much depends on the circumstances. Employers thus need to consider whether Positive Action is appropriate and a proportionate means of achieving a legitimate aim in the circumstances before the action is taken. Where employers do not carefully consider all of the facts before taking such action, the action is likely to constitute Positive Discrimination, which in the majority of cases will be against the law.

So what does Positive Action look like in practice?

Adhering to the legal restrictions under sections 158 or 159 EqA 2010 as set out above, there are some great examples of Positive Action being taken by organisations, including

  • Providing free English language lessons to non-English speaking employees;
  • Setting targets (but not quotas) for increasing participation of a targeted group;
  • Targeting advertising at specific disadvantaged groups, for example, advertising jobs in media outlets likely to be accessed by the target group;
  • Making a statement in recruitment advertisements that the employer welcomes applications from a target group, without limiting applications from others;
  • Working with local schools and colleges and inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the company; and
  • Advancing a candidate from a minority ethnic background where there is a 'tie-breaker' situation for the 10th place on the shortlist for a graduate scheme, with numerous candidates of equal merit, because people from minority ethnic backgrounds are under-represented in the company.

Record keeping and making scheduled reviews of any implemented action will be invaluable wherever an employer comes under fire for decisions that they have made in this regard.

The Black Lives Matter movement has been a reality check for many of us and there thus seems to be no time like the present for businesses to reflect on the diversity and inclusivity of their workforce. Whilst there are legal hurdles in place when implementing Positive Action measures, employers who take time to consider the relevant rules, document their rationale and transparently implement these measures in line with the law, will do so without the risk of legal sanction and, most importantly, will benefit from the advantages of having a more diverse organisation.