Many employers are keen to increase diversity in their workplaces, but is the law around positive action vs positive discrimination in the UK holding them back, asks Ranjit Dhindsa?
Diversity in the workplace is unanimously agreed to be a good thing, but the law governing routes to achieving this is less favourably regarded.
The Equality Act 2010 allows employers to take positive action (which is lawful), but does not allow positive discrimination (which is unlawful).
Positive action is based on the view that under-represented groups should be given equality of opportunity to overcome disadvantages they face. Positive discrimination is treating a person more favourably because of their protected characteristic(s).
Positive discrimination is therefore a form of direct discrimination, which is prohibited under the Equality Act.
The consequences of being accused of, or found to have exercised, direct discrimination by whatever means are serious, and can result in expensive, time-consuming tribunals, compensation pay-outs, reputational damage and damage to employer-workforce relations.
But the distinction between lawful efforts to increase diversity and unlawful decisions about how to treat different groups of people can be confusing for employers, with the result that some fear taking any steps to improve diversity at all for fear of falling foul of the law.
So, what constitutes positive action and how can employers get it right?
There are two types of positive action which are considered lawful.
General positive action
Section 158 of the Equality Act 2010 allows positive action when an employer reasonably thinks that a protected group:
- Suffers a disadvantage
- Has particular needs; and/or
- Does not participate enough in an activity (including employment).
Section 158 allows the employer to take proportionate action to reduce the disadvantage, meet the particular needs of the group or increase participation.
For example, an employer could decide that following a gender pay gap review, there are not sufficient women at senior levels in the workplace, and may therefore wish to encourage more female participation. There is very little case law regarding Section 158, which causes employers to be confused about how far they can go when taking positive action. Often employers inadvertently fall into the trap of positive discrimination.
To avoid this, an employer will first need some form of evidence of disadvantage, particular need or lack of participation to justify taking general positive action. This could be in the form of data, equality impact audits, profile of the workforce, employee surveys or pay gap reports.
Many employers do not collate evidence before taking positive action, which can be a risk if their actions are challenged.
Employers are often unaware that there are many types of positive action that they can take. These could include:
- Reviewing their recruitment process and ensuring bias is eliminated at every stage
- Reviewing retention and promotion practices and ensuring there is no disadvantage for a particular group. If there is disadvantage employers can put in place a variety of steps such as coaching, mentoring, reverse mentoring; and/or
- Raising awareness and education in a number of different ways. For example, creating values advocates, establishing networks and facilitating individuals and groups to share their experiences.
There is no prescriptive list of what constitutes positive action. Each employer will need to tailor the steps they take according to the issues their organisation faces.
However, it would be helpful if more employers shared examples of the different forms of positive action they have implemented, so that the private sector as a whole can learn from best practice and build confidence around improving workplace diversity.
Recruitment and promotion
The second form of positive action is specific to recruitment and promotion. Section 159 of the Equality Act 2010 allows employers to recruit or promote a person with a protected characteristic if they are equally qualified as the other candidate.
This is commonly known as a “tie-breaker” provision. However, the employer must not have a policy of automatically recruiting a person because of their protected characteristic.
This tie-breaker provision is also confusing. In practice, there are rarely two candidates who are of equal merit, particularly when recruiting for more senior roles.
There has only been one case to date which has considered Section 159. In 2019, the chief constable of Cheshire police was successfully sued by Mr Furlong when they operated an automatic blanket preference for under-represented groups. An assessment of the data showed that not all candidates were equal and some scored better than others in the recruitment process. Further, the steps they took were not proportionate, and Mr Furlong successfully won his discrimination claims.
In recent years, employers have started to adopt the “Rooney Rule”, which has been inherited from the US. This suggests that at least one candidate during the recruitment process should be from an underrepresented group. UK law has not yet tested whether the Rooney Rule would fall within the provisions of Section 159 or not.
The law is not well developed on positive action in the UK. However, the general provisions under Section 158 should be adopted by employers, even if the ambit of the law is not clear.
Employers can seek guidance from the Equality and Human Rights Commission, which has prepared a code on positive action. The Government Equalities Office has also produced a quick-start guide and step-by-step practical guide to using positive action when making appointments.
With regard to recruitment and promotion, employers need to take care to ensure the provisions of Section 159 are not breached, leading to claims of discrimination from excluded candidates. However, taking care is not the same as doing nothing, as lack of effort to improve diversity brings its own risks.