Diversity aims lead employers on to illegal territory

Over-zealous employers are flouting anti-discrimination laws in their bid to promote diversity and equality, a report by a leading law firm has revealed.

The perils of anti-discrimination law, study by Nabarro uncovered stark contradictions between the methods employers are deploying to promote diversity and the requirements of UK and EU law.

Targeting shortlists at women or ethnic minority candidates, recruiting only from areas with high ethnic minority populations and pooling only women or ethnic minority employees for promotion were among examples of unlawful behaviour identified.Sue Ashtiany, partner and head of employment at Nabarro, warned that confusion about the difference between lawful ‘positive action’ and unlawful ‘positive discrimination’ could land employers in court.

“The scope for positive action is limited and it seems inevitable that employers, including well-meaning ones, will run into difficulty. It is easy for actions to slip into the illegal category of positive discrimination,” she said.

Ashtiany cited the Race Relations Act (1976) which provides only for targeted training and encouragement, and only where members of the racial group in question are under-represented in work of a particular kind. So promoting equality for a certain racial group when they are over-represented in a particular role could be discriminatory.

However, the British Association for Women in Policing wants employers to be allowed to give applicants from under-represented communities preferential treatment if they have the right skills and attributes to do the job (affirmative action).

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