The government has published new guidance for employers who want to use positive action in the workplace to broaden opportunities for underrepresented groups. It explains how the Equality Act allows employers to use positive action under the Equality Act to create opportunities for certain people and level the playing field whilst, at the same time, highlighting the need to avoid disadvantaging other groups in a way that could amount to ‘positive discrimination’, which is unlawful.
A reminder. There are two types of positive action that are set out in the Equality Act 2010. There is the general provision in section 158 which the guidance suggests might include, for example, providing a leadership scheme to help an underrepresented group achieve more senior positions in an organisation, or providing tailored training for a group because they have specific requirements. There’s also section 159 which allows for positive action in recruitment or promotion. So, for example, hiring one candidate over another equally qualified one because the former has a certain protected characteristic that is underrepresented in the workforce. That’s the so-called ‘tie-breaker’ provision.
The Equality Act puts the onus squarely on the employer. So, the employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. As the guidance explains, taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Importantly, employers need to decide whether or not to take positive action on a case-by-case basis.
Those provisos are important ones and getting it wrong could result in unlawful discrimination and, potentially, employment tribunal claims. That might explain why, since 2010, employers have tended to steer well clear of positive action. But that is changing, especially among those employers with more mature D&I strategies who see this as a useful tool to improve equality of opportunity and to recruit or promote candidates. Earlier Trish Embley joined me by video-link from Birmingham and she told me it’s something she’s noticed:
Trish Embley: “Yes, positive action initiatives are more common because many of us are setting aspirational targets where we recognise that certain groups have been underrepresented for far too long. Changes are happening organically, so we do have to look at certain initiatives on recruitment and in promotion to ensure that those groups that have been historically underrepresented are now both being recruited and progressing within organisations.”
Joe Glavina: “So what are employers allowed to do?”
Trish Embley: “It’s really important that a distinction is made between positive action which is completely lawful and desirable, and positive discrimination, which is unlawful direct discrimination. So positive action initiatives really encourage and try to remove the hurdles as to why people perhaps aren't going to apply for certain jobs, or once they're in an organisation they don't progress. So the sorts of things we're talking about are targeted advertising, targeted for certain groups, open days, internships, and then within employment, training, mentoring, coaching, why aren't people progressing? If we have some feedback about why somebody didn't get a promotion, what skills are needed, then we can target those skills at those groups, whether they be on the on the grounds of gender, race, or disability. By contrast, positive discrimination is where we might say, okay, we don't seem to have many, for example, people of a certain ethnicity in this organisation so the next person we will appoint will be from that group. Now, that would be a classic example of unlawful discrimination. So I think what people need to understand is that positive action initiatives are just levelling the playing field, they do not in any way compromise the concept of meritocracy within an organisation. It's not about giving somebody who isn't as skilled for a job, a job. It's saying, what are the hurdles? Why perhaps they might not perform well in an interview? Or what are the skill gaps that that are associated with this group so we can fill that gap and make sure that they're starting at the same place as everybody else.”
Joe Glavina: “So in terms of implementing positive action initiatives, Trish, what would you say are the key things for HR to be aware of?”
Trish Embley: “I think what HR needs to be aware of is education generally within their organisations. So first of all, we've seen examples of very altruistic well intended people saying, right, great, I want more women in my team so the next recruit must be a woman. Now, as I say, that will be an example of positive discrimination. We see this particularly with the tiebreaker provisions in the Equality Act, section 159, which allows employers where you've got two candidates who are both equally as good, and where they are underrepresented for the proportion action to be taken, and for the person from the underrepresented group to actually get the role. But section 159 is very clear that the employer must not have a general policy of favouring people from an underrepresented group. So it's couple of things for HR to think about, first of all, when collating your data about whether people are underrepresented care needs to be taken there in terms of data processing, GDPR, etcetera, and then there’s proportionality. Now I think it's important that those individuals who are very altruistic understand where the line is between positive action and positive discrimination, but what we're also starting to see is some fear amongst those from the represented group who might think, oh, does this mean now that I should feel threatened, there's going to be this natural favouring towards underrepresented groups to my disadvantage. That is not what positive action is about but we are starting to see cases come through tribunals where those in the represented group will say, I'm being discriminated against. So I think that's really important, over and above getting the law right, is your communication to everyone in the organisation to say this is not about giving people an unfair leg up, this is a much needed levelling of the playing field. I think it's only if people understand concepts like privilege, which is through their own lived experience, they just think, well, I've worked hard, I've spent a lot of money on my education, why should somebody else be given an advantage? It's not actually an advantage, but there's a lot of communication that needs to be done around that so that people understand and see positive action for what it is. Not for what it is not.”
The guidance is useful in our view and includes a checklist for implementing positive action lawfully and points back to the dedicated section on positive action in the Equality and Human Rights Commission’s statutory code of practice on employment. It also contains a number of good explanations of the legal tests around sections 158 and 159 and, rightly, stresses the importance of data collection and analysis to support any action taken. We have put a link to the guidance in the transcript of this programme.
LINKS
- Link to government’s guidance on taking positive action in the workplace
