Weekly dilemma Positive action

As a public sector organisation, we are in the process of writing our gender equality scheme. We have identified several areas of the workforce where women are highly under-represented. The Gender Equality Duty code of practice advises employers that they can use positive action measures to counteract the effects of past discrimination. We were thinking of introducing a fixed target of appointments within these under-represented areas over the next three-year period. Is this lawful?

Answer by Jacqueline McCluskey, senior associate, Dundas & Wilson

Aspirational targets are lawful, but quotas are not. With quotas, candidates are appointed because of their membership of an under-represented group (ie gender). This is known as positive discrimination, which is unlawful in the UK. Positive action, on the other hand, is permissible where an employer offers encouragement or training to under-represented groups.

Gloucestershire Police fell foul of the difference between these two measures after white male applicants brought tribunal claims challenging the appointment of lesser-qualified BME (black or minority ethnic) candidates.

The recruiting managers had not met their aspirational BME targets, which they treated as if they were quotas, so this crossed the line into positive discrimination.

Recently, the Association of Chief Police Officers called for a change in the law to allow positive discrimination for women and ethnic minority police applicants (Personnel Today, 24 April).

If you are considering positive action and targets, you should approach this in two stages. Review the gender breakdown of those people carrying out the role over the last 12 months, and identify whether one gender is under-represented. If this is identified, you can offer training or encouragement to applicants from the under-represented gender.

Before introducing aspirational targets, advise managers of the reason for the positive action, the fact that the targets are aspirational, and explain the difference between positive action and positive discrimination. To avoid positive discrimination claims, ensure managers are not penalised if they do not meet their targets.

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