Positive action vs positive discrimination: how to stay within the law

Following news that the RAF discriminated against white men in its bid to boost diversity, People Management asks how to keep recruitment practices above board

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“Diversity isn’t about bums on seats,” says Katie Allen, equality, diversity and inclusion (EDI) consultant and executive coach, who points out that diversity is about creating conditions so that everyone has “equitable access to join an organisation”.  

But a recent inquiry into the Royal Air Force (RAF)’s employment processes discovered evidence that, in a bid to boost women and people from ethnic minorities into its talent pool, it actually engaged in unlawful positive discrimination. 

The Ministry of Defence’s investigation revealed that recruitment officers were under pressure to reach diversity targets, and this has led RAF leader air chief marshal Sir Richard Knighton to issue an apology. The RAF believed it was "pushing the boundaries" of positive action rather than acting unlawfully, according to the inquiry.

Allen says this is an “inevitable” outcome of organisations focusing entirely on recruiting and demographic hiring data as a means of engaging in EDI work, and it demonstrates a clear lack of understanding of why EDI is vital. 

Challenges with positive action

Another case brought to light the challenges that can arise when trying to implement legal positive action during the hiring process. Furlong, a white heterosexual man, successfully argued that his company had disregarded him when they attempted to resolve their diversity imbalance in Mr Foug v The Chief Constable of Cheshire Police

Cheshire Police asserted they were using positive action to recruit more police officers from an underrepresented group in line with the Equality Act 2010. The tribunal agreed that he had been directly discriminated against on the grounds of sexual orientation, race and gender. 

In these situations, according to Kate Palmer, HR advice and consultancy director at Peninsula, “an employee needs to prove on the balance of probabilities, facts that would lead a tribunal to believe discrimination has taken place in the absence of any other explanation”, adding that the burden then shifts to the employer to show a reason for the treatment that was not discrimination. 

Additionally, she explains that to avoid positive discrimination and still maintain a diverse workforce, employers should evaluate their current recruitment strategies, such as looking at how and and where they advertise, and eliminate any “unconscious bias” that might result in good candidates being rejected during the early stages of the recruitment process. 

Jacqui Barrett, co-founder and managing director of Wider Thinking, says: “Making sweeping assumptions about white men is a demonstration of blindspots and lack of awareness of intersectionality.” 

She adds that diversity spans a wide range of issues, including, but not limited to, visible and invisible disability, neurodiversity, socioeconomic status, sexual orientation and religion. 

Legal considerations

According to Palmer, conflating positive discrimination with positive action can lead businesses down an “unlawful path”, as seen in the RAF case. “Failing to understand the difference when recruiting for staff can turn a good intention into discrimination and hefty fines at an employment tribunal, as the intention of the employer will often be a good one, addressing a lack of diversity in their workforce,” she says. 

“But the measures that are open to an employer to address the imbalance do not go as far as being allowed to use a characteristic to sideline the person who is best for the job.” 

Alan Lewis, partner at Constantine Law, argues that because the Equality Act of 2010 protects both job applicants and employees from discrimination based on one of the nine predetermined protected characteristics, employers must understand the difference between positive discrimination and positive action. 

An employer must not act to treat an employee or job applicant more favourably because of a protected characteristic, as that would amount to positive discrimination, Lewis explains. “Exceptions to positive discrimination being unlawful are rare and include the duty on an employer to make reasonable adjustments so that a disabled person does not suffer a disadvantage because of a provision, practice or criteria,” he says. 

Lewis also notes the following methods that organisations can use to reduce claims while attempting to take positive action: 

  • Evidence of the disadvantage, particular need or disproportionately low levels of participation, as appropriate, and an analysis of the causes
  • The specific outcomes the employer is aiming to achieve
  • An assessment of the proportionality of the proposed action
  • Measurable indicators of progress towards those aims, set against a timetable
  • Consult with relevant groups, such as all staff, staff support groups and members of the protected group the programme is being established for

Lutfur Ali, senior EDI adviser at the CIPD, stresses that “everyone has the right to be treated with respect, dignity and fairness and be empowered to achieve equality of opportunity, access and outcomes”.

“Employers in England, Scotland and Wales can choose to use the positive action measures in the Equality Act 2010 to address this discrimination and disadvantage by providing specific, tailored support to address needs, enable people to overcome the barriers, help create a level playing field and thereby improve representation in the workforce,” he says. 

To do this legally, Ali explains that businesses must grasp what the legislation allows and does not allow.

Is it time for a law change?

Just yesterday (3 July), various media outlets reported that John Robins, head of West Yorkshire Police, has called for positive discrimination to become legal in a bid to increase Black and Asian recruits. 

According to The Telegraph, Robins pointed to the Good Friday Agreement in Northern Ireland – which allowed positive discrimination in favour of Catholic officers – adding that the “time has now come” for a change in legislation. 

Lewis says a change in the law would “require a fine balancing exercise so as to enable the required increase in the numbers of recruits of people [with] ethnic minority backgrounds, while at the same time not leading to claims of discrimination where candidates [with] other backgrounds are deliberately overlooked”.  

He ponders whether other sectors would follow suit if legislation was changed for the police force.

Should positive discrimination legislation be amended in Great Britain to allow for greater diversity? Have your say in People Management’s poll on LinkedIn