It is against the law to discriminate positively in favour of one race, yet the Association of Chief Police Officers, Trevor Phillips, head of the Commission for Racial Equality, and most recently the human resources (HR) director of the Metropolitan Police, Martin Tiplady, have all called for positive discrimination to be legalised in the UK to get more non-white people into the country's police force. Some in the unions are for it too: Alan Ritchie, general secretary of Ucatt, believes employers in the construction industry should be allowed to use positive discrimination to improve diversity in their workforce.
But if employers do discriminate positively, Sarah Turner, partner and head of employment at Turner Parkinson, points out that this carries the same penalties as any other form of discrimination, with the exception of the Disability Discrimination Act. "Awards of compensation for discrimination claims brought to employment tribunal are currently unlimited, meaning costs could be perilously high for employers," she says.
Employers are, however, permitted to use 'positive action'. This is where an employer provides support or encouragement to a particular minority group or gender, although it is only allowed when that group or gender is badly under-represented in the organisation. As such, an employer may actively encourage certain individuals to apply for jobs by stating that applications from them will be particularly welcome. Special training can also be given to members of the specific minority group or gender.
Employers in the public sector may go a step further. Indeed, the Gender Equality Duty, which came into force in April 2007, places a duty on public sector organisations to be proactive in promoting diversity and equality, including in their recruitment policies. Some areas of the public sector are even set targets for recruiting particular minority groups.
Despite these legal drivers to encourage diversity, all employers must stop short of favouring members of any group when it comes to actually accepting the person for the job. At this point, applicants must be selected on their ability to do the work.
The problem is, admits Turner, that employers can quickly and unexpectedly find themselves, at best, criticised publicly and, at worst, feeling the heavy hand of the law. The Metropolitan Police is one high-profile employer that has been accused of positive discrimination, when it tried to meet government quotas for employing ethnic minorities in the force. Another recent example is a recruitment company that advertised for individuals from a 'visibly non-white' background. This was a clear case of positive discrimination, which falls foul of the Race Relations Act 1976.
Gloucestershire Police Force has also been criticised for deselecting white people on race grounds. More recently, the Environment Agency came under fire when it introduced a training programme that specifically encouraged applicants from all groups other than white English people.
Dianah Worman, diversity adviser at the Chartered Institute of Personnel and Development, says the line between positive action and positive discrimination is "thin".
When it comes to the most recent discrimination legislation on age, the line can be particularly blurred, says Rachel Krys, spokesperson for the Employers Forum on Age. "We haven't had enough case law to make the boundaries clearer," she explains.
Krys points out that studies have found that it can be harder for older people to complete psychometric tests, not because they have a lower IQ but because younger people are more used to them. "So some companies are introducing extra help for older groups to help level the playing field. But it is a slightly hazy area in the law and if someone challenged it, it's possible they'd have a case."
Catrin Macarthy, an employment and regulatory solicitor at TLT, says: "Employers do not want to be labelled 'discriminatory', and neither do they want to expose themselves to the liability of uncapped damages. Consequently, employers are often over-cautious where there is any potential element of discrimination."
Acting lawfully is not altogether impossible, however, with some examples of best practice falling well and truly on the correct side of the law. Among them are diversity shortlists. This year, the energy giant RWE Npower aims to have a suitable internal or external female candidate shortlisted for at least 50% of vacant positions that have a high impact on customers, revenues or business processes.
The company is also making its recruitment suppliers fully aware of its diversity requirements and ensuring they are sourcing female candidates and those from minority ethnic groups for senior level jobs.
"We haven't set ourselves targets for the number of women or people from black and minority ethnic communities who will actually be taken on at senior level and that's how we manage to ensure this isn't an exercise in positive discrimination," explains Nick Smith, head of diversity at Npower.
Focusing on precisely what groups your workforce lacks and ensuring there is nothing in your working culture or policies that could put them off applying for jobs is also perfectly legal, as West Yorkshire Fire Service has found. It designed a policy to improve recruitment, retention and promotion of Bangladeshi, Pakistani and Caribbean women by looking at things such as the needs of these women in terms of clothing and jewellery.
Meanwhile, Shoosmiths HR-led diversity programme addressed the shortage of female ethnic minorities by placing emphasis on training staff in diversity, providing mentoring programmes and targeted advertising. "We also operate voluntary diversity monitoring so that we can keep track if minority groups are lacking in certain business areas, and we really listen to staff suggestions, which has led to things such as a prayer room," says recruitment manager Rita Tappia.
"The key is for diversity efforts not to be a box-ticking exercise, which is all too easy when employers are scared of getting too close to positive discrimination," says Alan Wardle, director of parliamentary and public affairs at Stonewall. "With targeted advertising, for example, there is a tendency for companies interested in attracting more lesbian, gay and bisexual staff to advertise in the Pink Paper. But organisations need to be a bit smarter and move beyond the stereotypes about how they reach these people - for example, through e-mail networks."
Wardle adds that employers should think carefully about the messages they give out in job ads. "Some employers have found that when they tone down aggressive language like 'dynamic' and 'go-getting', they get more applications from women." The interviewing panel is equally important, he says. "They need to be representative of society because it's easy to slip into constantly recruiting an 'organisational type'."
Diversity champions - high-level people from minority groups - can also be beneficial, Wardle adds.
At PricewaterhouseCoopers, targeted development has proven successful. "A lot of organisations, including my own, focus on helping women become more self-confident, have greater impact and stronger influential skills," says Sarah Churchman, head of diversity at the consultancy. "Building networks can be another powerful force of change for any minority group. Bringing people together gives them access to senior role models and helps the organisation itself understand the specific issues facing these groups.
"Mentoring programmes can also help people develop the right skills, and if it's done well can be an equally useful experience for the mentor to see for themselves the kind of barriers facing certain groups."
Churchman believes that in a competitive market, positive discrimination is completely irrational. "It makes commercial sense to create an environment where meritocracy prevails. Anything other than that is de-motivating for everyone and productivity will inevitably drop."
How others handle it
Adam Fuge, partner at Matthew Arnold & Baldwin, calls positive discrimination "effectively a form of social engineering".
A number of non-EU countries allow for some form of it, he points out. "South Africa probably has the most extreme system enshrined in law, but this is, of course ,for complex and understandable historical reasons.
"'Affirmative action' occurs in the US in school admissions, job hiring and government and corporate contracts. But again, the US approach to this issue can be explained by its historic difficulties with issues such as racial segregation."
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