With so many initiatives focusing on equality, diversity and inclusion, we often hear about examples of positive action or positive discrimination in the context of employers’ approaches to increasing representation.
The terms are often couched in such a way that we see examples of positive discrimination as inherently bad, because it is deemed unlawful, and positive action as a supportive approach to improving representation in the business.
The Equality Act 2010 says that it is lawful for employers to take positive action, but the law does not allow positive discrimination, but the line between the two often causes confusion.
In basic terms, positive discrimination implies an organisation is recruiting or promoting someone because of their protected characteristic, rather than on merit. Examples of positive action generally involve removing barriers and improving access for under-represented groups to help address inequalities in recruitment and promotion or across the workplace more widely.
What is the legal definition of positive action v positive discrimination?
In a recruitment context, an example of positive discrimination would be where an employer hires someone because they have one of the nine protected characteristics in the Equality Act, rather than because they are the best candidate. Subject to a few exceptions, this is unlawful under the Equality Act 2010.
The nine protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Positive action examples
Positive action, however, is allowed providing employers meet the conditions set out in the Equality Act 2010. In essence, this means taking “proportionate” steps to improve equality in the workplace by removing or reducing barriers faced by certain groups with shared protected characteristics.
“Positive action is taking steps to remove barriers or obstacles, to enable or assist protected groups that are disadvantaged or disproportionately under-represented,” explains Antonio Fletcher, head of employment law at Whitehead Monckton.
Reducing hurdles for some groups could involve providing training targeted at helping them access the recruitment or promotion process. Another example could be targeting advertising at a particular audience, such as black, Asian or other ethnic minorities where they are under-represented.
Doing this aims to make these processes more equitable, but the final decision about a candidate or promotion must be made on merit alone.
Positive action and positive discrimination examples in recruitment
According to the Equality Act 2010, there are two examples of positive action that are considered lawful: general positive action and positive action in recruitment or promotion.
Section 158 of the Equality Act allows employers to take positive action if they believe a protected group suffers a disadvantage, has particular needs or does not participate enough in an activity (in this case, employment). The positive action can reduce this disadvantage.
Section 159 of the Equality Act allows employers to recruit or promote a person with a protected characteristic if they are equally qualified as the other candidate, also known as a tie-breaker situation.
“An example of positive action would be selecting a candidate who is part of a protected group for a job who is equally qualified as the other individual who is not part of that protected group,” adds Fletcher.
“Such action must be proportionate and appropriate to achieve an objective of improving equality such as where groups suffer a disadvantage, have particular needs, or are disproportionately under-represented.”
Examples of positive action
“Broadly speaking, positive action, which is voluntary, is where employers take proportionate action to achieve more effective equality outcomes for individuals sharing a particular protected characteristic who are disadvantaged or excluded,” says Melanie Pimenta, senior solicitor at Clarkslegal.
“Section 158 is the general ‘positive action’ provision, enabling employers to take measures that will encourage greater participation from under-represented groups.
“There is potential for confusion as to how an employer decides whether candidates are as qualified as each other” – Sarah Calderwood, Slater Heelis
“It can take many forms, including providing a specifically tailored service to a disadvantaged group or including statements in job adverts to encourage applications from under-represented groups.”
Why are employers cautious about taking positive action?
“Employers are nervous of the associated risk and cost of claims being brought against them, as well as reputational risk,” explain Rebecca Berry and Ella Whelan from law firm Stevens and Bolton. “It goes against the grain, in many respects, to prioritise one group over the other, and to do so does in itself risk discrimination claims.”
“Before taking any positive action, it is important that employers always act fairly and consider matters at any particular time,” they advise. “Any action must be reviewed regularly as, to argue that positive action is lawful, there usually needs to be under representation at the time.”
“Employers will also be mindful that they need to manage the impact of any positive action on the existing workforce, in particular the perception that existing employees may get the impression that someone was recruited or promoted simply because they hold a particular characteristic.”
Are there any legal cases involving positive action vs positive discrimination?
One of the challenges of weighing up the risks of applying positive action is that there is very little legal precedent clarifying what is lawful in practice.
The main legal case in this area is Furlong v Chief Constable of Cheshire Police, a claim heard in the employment tribunal in 2019. In the case, it was ruled that a police force had discriminated against a white heterosexual male candidate after making provisions for positive action.
Mr Furlong had applied for an office role in Cheshire Police Force but was rejected after passing the interview and assessment stage. At the time, the force had in place a plan to attract, recruit and develop ethnic minority and female officers. Furlong brought a claim for race, sexual orientation and sex discrimination, and won his case.
The tribunal found that, in this example, positive action had been applied following the interview stage, at which point the force would need to show that all candidates were of equal merit in order to favour those with protected characteristics over Furlong. Upon investigation, it found that he was a “relatively strong candidate” who likely would have been recruited had positive action not been applied at this stage.
This case shows the difficulty of using the S.159 “tie-breaker” rule to justify positive action in recruitment, says Sarah Calderwood, partner in the employment team at Slater Heelis.
“The [Equality Act] allows an employer to treat a person/ persons who share the same protected characteristic more favourably than another person/persons who do not share the same characteristic in connection with recruitment or promotion.
“However this is only permitted where the persons are as qualified as each other for the role or promotion; the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion; and taking the action is a proportionate means of achieving a legitimate aim.”
“There is potential for confusion as to how an employer decides whether candidates are as qualified as each other as recruitment decisions rarely just come down to qualifications in the formal sense and may include greater weight being given to experience or other qualities,” she adds.
Employers must be careful that any example of positive action they plan to take is proportionate, advises Calderwood.
“This means that employers have to take into account competing factors including whether the proposed action is appropriate to achieve the intended aim or whether it would be possible to achieve the aim via other means,” she says.
Susie Lockhart, senior employment law solicitor at WorkNest, says the law is designed for “cases where there is a clear imbalance of opportunity”.
“[In such cases] employers can take proportionate measures to address the disadvantage and encourage participation without exposing themselves to discrimination claims from individuals who don’t share the relevant protected characteristic.
“It’s important to note that the positive action taken to be proportionate and that while employers are permitted to take positive action in certain circumstances, they are not obliged to do so.”
If a tribunal asked an employer to demonstrate that an approach was proportionate, it would likely call upon any evidence the organisation had gathered to show this, so it’s worth collecting any data on this before planning or executing such initiatives.
Are there exceptions to the positive action and discrimination rules?
There are a number of very limited exceptions where employers can favour certain candidates or employees with protected characteristics over others. The key exception is disability.
According to the Equality Act, employers may treat candidates with a disability more favourably than non-disabled candidates and this will not amount to direct discrimination. The Equality and Human Rights Commission’s statutory code of practice explains that “an employer can lawfully advertise a job as only open to disabled applicants because of the asymmetrical nature of disability discrimination”.
Before taking any positive action, companies should be working internally on their values and thinking about why they need to take that action” – Jemma Fairclough-Haynes, Orchard Employment Law
Across the other protected characteristics, employers generally need to show any preference is justified as a “proportionate means of achieving a legitimate aim”. This measure is often raised in claims relating to whether an organisation can justify imposing a retirement age.
The importance of culture
Applying positive action initiatives ‘out of the blue’ could have an impact on employee engagement within the organisation and public perception externally, says Jemma Fairclough-Haynes, CEO of Orchard Employment Law.
“Clients have approached me before asking if they can support a particular group but don’t know how without breaking the law, or they’re worried what other employees will think,” she explains. “Similarly, someone who gets a job via a positive action may wonder whether they got that job on merit or because they have a particular protected characteristic. Emotions can run high when implementing such measures so many employers shy away.”
Fairclough-Haynes adds that positive action works best for employers that are already fostering an inclusive organisational culture. “If for example they’re openly working towards a culture of anti-racism or disability friendly accreditation, then it will arguably be more acceptable. Before taking any positive action, companies should be working internally on their values and thinking about why they need to take that action.”
Is it lawful to ask for certain candidates on shortlists?
The National Football League in the US established the “Rooney Rule” in 2003, named after the chair of its diversity committee, Dan Rooney. It requires that any team selecting a head coach must interview at least one ethnic minority candidate.
The outcome of the Furlong v Chief Constable of Cheshire Police case detailed above suggests that guaranteeing a candidate with a particular protected characteristic a place on a shortlist would not be lawful in UK employment law. A tribunal could argue that the person who benefited from the positive action of being shortlisted meant someone else was excluded, meaning there could be grounds for discrimination.