Last month, the government-commissioned report Developing Positive Action backed the use of ‘contract compliance’ – meaning that organisations will be set goals and timetables for increasing ethnic employment as a condition of doing business with central government.
There are fears, most recently voiced in Personnel Today by the director-general of the engineering employers body EEF, that this may lead to the legitimisation of positive discrimination.
If employers looking to do business with government have to maintain certain minimum levels of ethnic minority employment, then we are, in effect, back to the quota system that failed so miserably in its previous incarnation, the Disabled Persons (Employment) Act 1944.
Fine line
At present, the Race Relations Act 1976 forbids discrimination, even where it is carried out with the best of intentions. This includes seeking to address racial imbalances by deliberately recruiting new staff in the under-represented section of the workforce.
As a number of employers have found to their cost, it is necessary to distinguish between positive action (such as encouraging applications from certain sections of the community in certain circumstances), which is lawful, and positive discrimination, which is not. This is sometimes a difficult line to tread.
In Taylor v Acas in 1998 (a gender case, but applying exactly the same principles), the arbitration service had gone out of its way to train its recruiters in discrimination matters, stressing that “more needs to be done to ensure the reality of the statement that we are an equal opportunities employer” – all very worthy. But when Taylor was passed over in favour of an arguably less-qualified woman, he used that emphasis successfully as evidence of unlawful positive discrimination by Acas in favour of women.
Any proposal to allow, let alone require, contract compliance as a means of boosting ethnic minority employment is, therefore, a reversal of the usual premise – sought for so long by equal opportunities bodies – that the best person should get the job irrespective of race (or sex, religion, age, etc).
In addition, if the principle of positive discrimination is accepted just to make up numbers, then what is to stop it being applied also to subsequent pay, promotion or retention decisions?
Impact
Government bodies dealing with the private sector already can, and often do, make fairly searching enquiries into the diversity records of prospective suppliers, including details of their equal opportunities policies and claims history. Subject to the best value rules, they already have the ability not to deal with private sector companies with particularly patchy records in this respect.
This encourages voluntary compliance in that sector without going to the lengths of (in effect) dictating the composition of the supplier workforce.
The tribunal system exists in part to help those who feel they are best for the job but have been turned down on racial grounds. That process itself is sufficiently lengthy and expensive enough that many employers already take steps towards ensuring that their recruitment (and reward and retention) practices are ‘colour blind’.
If an employer feels it necessary for business-winning reasons to recruit, retain or promote ethnic minority candidates, almost irrespective of their personal merit, then the scope for division in the workforce is both stark and immediate. This is in effect ‘bumping’ on racial grounds. It is not creating the fabled ‘level playing field’, but instead distorting the employer’s ability to recruit the best person for the job.
There is a world of difference between striving for equality of opportunity (assisted by positive action by all means) on the one hand, and the introduction of a formulaic system on the other, where individual merit or suitability risks coming second to the vagaries of the employer’s performance against a quota or timetable. To move any distance down that road would surely be a dramatically retrograde step for the causes both of equality, and wider industrial relations.
By David Whincup, head of human capital, Hammonds
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