Mon 3 June, 2019
Positive action and positive discrimination
Advertising jobs targeting applicants of a particular race or granting a promotion based on gender can be confusing and controversial.
In the current climate great emphasis is based on equality and diversity, so the idea that a candidate can be recruited or promoted based on a certain characteristic may seem dubious.
It is perfectly legal for employers to act in this way, but only in very specific circumstances.
The terms ‘positive action’ and ‘positive discrimination’ will be familiar and they are often mistakenly interchanged.
Positive action (1) in recruitment means it is not unlawful discrimination to take special measures to combat disadvantage or under-representation experienced by those with a protected characteristic.
Positive discrimination (2) is generally unlawful. There are, however, rare circumstances in which it is lawful to require a job candidate or employee to have a particular protected characteristic, for example where an occupational requirement applies.
Positive discrimination should be distinguished from positive action, which is lawful. Here we will look at both.
It is lawful under the Equality Act 2010 (3)for an employer to take action to address disadvantages that it believes are faced by people who share a particular protected characteristic such as race, age or sex.
The Act also covers the limited circumstances in which positive action can be taken in regards to recruitment and promotion.
Positive action is lawful if it is taken to: overcome a disadvantage connected to a protected characteristic; meet the needs of people who share a protected characteristic; or enable or encourage people who share a protected characteristic to participate in an activity in which they are poorly represented.
In some circumstances job advertisements can target people from disadvantaged groups.
Section 159 of the Equality Act (4) allows an employer to treat an applicant or employee with a protected characteristic more favourably than an individual without that characteristic who is as qualified for the role.
The BBC was forced to refute claims it was ‘anti-white’ when it advertised for two junior scriptwriting roles for medical drama Holby City as available only to people from ‘ethnic minority backgrounds’ (5)
The Corporation defended the move saying it was the right thing to do given the under-representation of people from ethnic minority backgrounds in script editing roles at the BBC.
Taking the positive action must be a balanced way to tackle any disadvantages faced by a particular group or to encourage them to take part in an activity.
In rare circumstances and as a special measure employers can discriminate in favour of a particular group if it is a positive step to tackle a disadvantage or to meet a very specific need.
It is lawful to require a job applicant or worker to have a particular protected characteristic, for example where an occupational requirement applies.
A domestic violence refuge for women can advertise for females only as it can be deemed to be a genuine occupational requirement under the Equality Act.
Earlier this year the leader of Britain’s police chiefs said police forces should be allowed to positively discriminate in favour of potential employees from minority ethnic backgrounds in order make themselves more representative of communities they serve (6)
Sara Thornton, chair of the National Police Chief Council said she believed that positive discrimination was needed, and new laws should be passed to ‘shock the system’. Thornton said it was her personal view that positive discrimination was needed
An employment tribunal case involving one police force should serve as a warning to all employers in regards to discrimination in recruitment.
A Liverpool employment tribunal found Cheshire Police was guilty of discrimination on the grounds of sexual orientation, race and gender after a potential recruit claimed he was rejected because he was white, male and heterosexual (7)
Positive discrimination is generally unlawful but positive action is not. If positive action is taken it must be proportionate, or appropriate, to achieve what it is setting out to achieve without resulting in people without the relevant characteristic being treated less favourably.
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- Cambridge dictionary [Internet] https://dictionary.cambridge.org [Accessed on 28.5.19] https://dictionary.cambridge.org/dictionary/english/positive-action
- Discrimination [Internet] https://uk.practicallaw.thomsonreuters [Accessed on 28.5.19] https://uk.practicallaw.thomsonreuters.com/5-200-3419?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1
- 2010 Equality Act [Internet] https://www.legislation.gov.uk [Accessed on 28.5.19] https://www.legislation.gov.uk/ukpga/2010/15/contents
- Equality Act [Internet] https://www.legislation.gov.uk [Accessed on 28.5.19] https://www.legislation.gov.uk/ukpga/2010/15/section/159
- BBC article [Internet] https://www.theguardian.com [Accessed on 28.5.19] https://www.theguardian.com/media/2016/jun/03/bbc-sun-auntie-anti-white-holby-city.
- Police force article [Internet] https:/www.theguardian.com [Accessed on 28.5.19] https://www.theguardian.com/uk-news/2019/feb/22/police-leader-calls-for-laws-to-allow-positive-race-discrimination.
- Liverpool Employment Tribunal [Internet] https://www.liverpoolecho.co.uk [Accessed on 28.5.19] https://www.liverpoolecho.co.uk/news/liverpool-news/police-force-found-guilty-discriminating-15875244