The recent Black Lives Matter protests have rightfully brought racial inequality to the fore, leading to a renewed focus on the lack of progress of UK organisations to improve racial diversity in the workplace.
Research shows that black, Asian and minority ethnic (BAME) individuals in the UK are both less likely to participate in and then less likely to progress through the workplace when compared with white individuals. The structural bias that exists in organisations, and which favours a select group of individuals to the detriment of BAME individuals, has been exposed.
Tackling the problem will not be easy and will require a long-term process of cultural change encompassing leadership support, training, talent management and recruitment efforts.
Yet employers have a tricky tightrope to walk. For while taking positive action, they need to be aware of the strict parameters of the Equality Act 2010 (EqA) to ensure they don’t inadvertently fall foul of UK discrimination law.
Positive action is not the same as positive discrimination
Positive action refers to measures an employer takes to help alleviate disadvantage experienced in the labour market by groups sharing a protected characteristic, to increase their participation in the workforce where this is disproportionately low, or to meet their particular needs relating to employment.
This might include measures to increase the talent pool, such as setting targets for increased participation, aiming advertising at specific disadvantaged groups, providing bursaries, outreach work and targeted networking opportunities. General positive action can also be taken in relation to current staff and might include providing mentoring or reserving places on training courses. Some positive action in relation to recruitment and promotion may also be lawful provided the statutory requirements set out in the Equality Act are met.
Positive discrimination on the other hand is the practice of treating one person more favourably than another because they have a protected characteristic. Race is a protected characteristic and includes colour, nationality, ethnic or national origins. If an employer were to offer employment to a candidate purely on the basis of their race, this would be positive discrimination. This is generally unlawful, unless one of the statutory occupational requirements applies (for example, that having regard to the nature or context of the work, being of a particular race is an occupational requirement). Setting a quota to recruit a specific number of people from a BAME background would be positive discrimination and unlawful.
Limits to positive action
Certain circumstances must exist for the positive action to be lawful. The employer must reasonably think that either people who share a protected characteristic suffer a disadvantage connected to the characteristic; or have needs that are different from the needs of persons who do not share it; or that participation in an activity by people who share a protected characteristic is disproportionately low. To demonstrate this, the employer needs to gather reliable information or evidence.
Once this threshold has been met, the employer needs to assess whether the positive action envisaged is a proportionate means of achieving its aim of remedying disadvantage, meeting needs or encouraging participation.
The conditions for positive action in recruitment and promotion are even stricter. Positive action in these circumstances can only be used in a ‘tie-breaker’ scenario, ie, where an employer is deciding between two or more candidates for recruitment or promotion and the candidates are of equal merit. Then the employer may take into consideration whether one candidate is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce.
Again, the employer will need reliable information or evidence to back this up and to make an assessment as to the proportionality of the measure. In addition, the employer faces the (often difficult) task of assessing whether the person with the protected characteristic, who they wish to treat more favourably than another candidate, is just as qualified to be recruited or promoted as the other candidate.
The risk of getting this wrong is that a person who does not hold the relevant protected characteristic may bring and win a discrimination claim, as was seen last year in the employment tribunal case of Furlong v Chief Constable of Cheshire Police. In this case, the tribunal was critical of the approach of the respondent in various ways including commenting that it should have waited longer to assess the outcome of earlier diversity and inclusion programmes before embarking on a radical programme of offering posts to all black, female, LGBTQ+ or disabled candidates who passed the selection process.
While employers should be encouraged to build on the momentum of the Black Lives Matter movement and to make the structural changes necessary to create an inclusive workforce, they should also be mindful of the need to do this lawfully. Given the progress we need to see, the law is perhaps disappointingly restrictive in terms of positive action that can be taken. We have already seen the difficulties of improving the representation of women in the workplace under the same legal framework. Employers are about to experience similar, and arguably, greater challenges as they strive to increase the proportion of people from BAME backgrounds.
Nikola Southern is a partner and Clodagh Hogan an associate in the employment team at Kingsley Napley LLP