Legal

Could a fresh approach to positive action improve diversity?

19 Oct 2020 By Ray Silverstein and Bridget Tatham

Ray Silverstein and Bridget Tatham look at whether a rethink of the Equality Act might help tackle underrepresentation in the workplace

Discrimination in employment on the grounds of race has been illegal in the UK for more than 50 years, and yet, according to the Equality and Human Rights Commission, significantly lower percentages of black people (5.7 per cent) work as managers, directors and senior officials, compared to white people (10.7 per cent). There is a growing consensus that the Covid-19 crisis is exacerbating an unjust situation. 

It is a matter of major regret and frustration to many of us in the field that aspects of UK discrimination law, introduced to tackle the overt and systemic bias that favours certain individuals in relation to employment, including on the grounds of race, are not working effectively. 

An example of where discrimination law is deeply flawed is positive action in recruitment and promotion. Positive action has been available to employers for approximately 10 years but has been avoided by the vast majority – but why? Is it a notorious failure of discrimination law? The low take-up of positive action reflects the fear and uncertainty of employers in using this as one of the tools to tackle racial underrepresentation within their organisations. The risk of a discrimination claim being upheld against an employer that applies positive action is well known and has made this law close to irrelevant in practice. 

In the absence of positive action, what are businesses doing to accelerate change for underrepresented groups in their organisations? Employers are publishing diversity surveys, such as gender and ethnicity pay gaps, to not only understand who is in the business, but also to be transparent and held to account. Where accompanied by targets these surveys are an essential part of the process for change. 

Review of policies to ensure that they do not present obstacles to underrepresented groups, while not opening the organisation up to challenge, is being carried out. Likewise, the language used for job descriptions and adverts for roles is under scrutiny for nuances that may perpetuate bias. Coupled with training, such as on unconscious bias or conscious inclusion, employers aim to raise awareness at key stages such as recruitment and promotion panels. Where possible those very same panels are mixed along protected characteristics lines, with the aim being to physically root out bias, or at least to balance the biases held by the constituent parts of the panel. 

This is, of course, not an exhaustive list. While companies are investing in a range of strategies to tackle the underrepresentation of certain groups in their organisations, it is probable that private and public organisations will use their purchasing power to accelerate change. Positive action, if carefully explained, promoted and understood, can form part of the essential tools for change that employers increasingly use with confidence to tackle underrepresentation. 

Ray Silverstein is head of the London employment practice, and Bridget Tatham leads the Birmingham insurance and risk team, at Browne Jacobson 

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