To what extent can employers take positive action in recruitment or promotion to increase workforce diversity? Ashok Kanani reviews the law on positive action.
Recently, the Football League announced that football clubs have given their backing to an initiative aimed at increasing employment opportunities for managers and coaches from a black, Asian and minority ethnic (BAME) background because they are currently under-represented.
Separately, the BBC ran a campaign to encourage people with disabilities to apply for a training opportunity on weather presenting on media channels because the corporation currently has no weather presenters with disabilities.
Positive discrimination is unlawful
The starting position under equality laws is that it is unlawful for employers to discriminate against job applicants (or employees) because of a “protected characteristic”, such as disability, race or gender.
This includes giving preferential treatment to a candidate from a group with a protected characteristic that is under-represented in the employer’s workforce, for example to correct a gender imbalance.
Positive discrimination schemes are rare because of the risk of such schemes being unlawful.
The 2003 case of EFTA Surveillance Authority v Kingdom of Norway involved a challenge to the Norwegian Government’s 1998 programme of reserving post-doctoral research grants for women because women were under represented in academic positions.
The European Free Trade Association Court held that the programme was contrary to European law. It stated that measures that provided an automatic and unconditional priority to women where men and women were equally qualified would not be compatible with European law.
However, certain forms of positive action by an employer are permitted under the Equality Act 2010. It is important to bear in mind that positive action has a very specific meaning and it should not generally be thought of as positive discrimination.
Positive action involves an employer taking positive “proportionate” steps to help remove the hurdles faced by sections of the community that are under-represented in its workforce.
Two type of positive action
General provisions on positive action allow an employer to take steps to encourage people from an under-represented group to take advantage of opportunities for employment.
Taking such steps is subject to certain conditions, including having the objective to reduce the under-representation in the employer’s workforce. The steps can include measures to encourage or train people from an under-represented group to apply for jobs.
Specific provisions on positive action allow employers to select an applicant for recruitment or promotion from an under-represented group, in favour of another applicant who is not from that group, if, and only if, both applicants are “as qualified as” each other.
In other words, where there is a tie between two candidates in a recruitment or promotion round, and one of the candidates is from an under-represented group, the employer can use the positive action provisions to appoint the candidate from the under-represented group.
Positive action by the Football League
This appears to be the approach the Football League intends to take.
Its announcement stated that it is looking to introduce “mandatory new recruitment practices in Academy football that would make it compulsory for clubs to interview at least one BAME candidate (where an application has been received) for all youth development roles…”
The Football League says it intends to “set a target of between 10% and 20% (to be agreed in due course) of these positions being filled by BAME coaches by 2019”.
While well intentioned, employers need to be aware of the practical difficulties in adopting a positive action policy in recruitment, or indeed promotion. How easy is it to say that two candidates are equally qualified?
Government guidance on positive action
Guidance published by the Government Equalities Office refers to candidates being “of equal merit” to each other.
The guidance advises that “a candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job” can be taken into account when assessing candidates.
Some of the criteria undoubtedly involve subjective judgements which could be open to challenge by an unhappy unsuccessful candidate.
Employers, therefore, need to tread carefully when making use of the positive action provisions in the Equality Act. If an employer is to successfully use positive action, its recruitment or promotion programme must be able to stand up to scrutiny.