Should positive discrimination be legalised in the UK?

Should positive discrimination be legalised in the UK? HR professionals, employment lawyers and D&I experts have been giving their views in a debate sparked by comments by John Robins, chief constable of West Yorkshire Police who has said, publicly, that he thinks the law should be changed to help increase the number of Black and Asian recruits in the police. As The Telegraph reports, Robins made his point in a BBC radio interview saying: “I think the time has now come that legislation should change so that we [use] positive discrimination.” 

People Management reports on this and asks the question: ‘Should positive discrimination be legal in the UK?’ canvassing views from HR, employment lawyers and D&I specialists. As for HR, their LinkedIn poll received over 500 responses and found that 72% think positive discrimination should remain unlawful. Just 28% thought the law should be changed. The majority view is that in all cases recruitment should be a meritocracy with the best candidates getting the job, a view broadly supported by employment lawyers and D&I specialists who recognise that changing the law - moving away from merit-based recruitment - is unfair on the individuals who are overlooked, whoever they happen to be. 

Why is this in the news? It goes back to 17 April when the government published new guidance for employers who want to use positive action in the workplace to broaden opportunities for underrepresented groups and it’s a strong indication that the government has no intention of changing the law. The guidance is designed to help employers use the existing law to better effect.
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 ‘tiebreaker’ provision. 

As we highlighted in our programme on this area back in April when the government’s guidance was published, positive action is gaining traction with some employers. So, let’s get an update on what clients are doing. Earlier I was joined by D&I specialists Anne Sammon and Kate Dodd. I asked Anne where she is on this with her clients:

Anne Sammon: “So, I think what we're seeing is a lot more organisations look at positive action and look at the ways in which they might implement a positive action programme, but we haven't seen them actually do the implementation yet. So, there's lots of talk about it but we're not necessarily seeing that talk immediately translate into actions. I think, potentially, it can be a really useful tool so long as it's used appropriately and that means identifying what the problem is within your own organisation, what's the barrier for diverse candidates, and targeting that barrier through positive action rather than doing some sort of blanket thing that you just think might work on instinct rather than having the evidence to back it up.”

Joe Glavina: “The guidance emphasises the importance of data collection and analysis to support any action that you take. Why is that necessary, Anne?”

Anne Sammon: “So, for me, data collection and analysis is an absolute key part of any D&I strategy because you need to identify what your problem is first of all before you try and solve it. So, the reason that data collection is so important, particularly with positive action, is because what we're trying to show is, first of all, that we don't have particular diverse individuals in particular roles, or particular sections, of an organisation. We can't do that without the data. So, in order to kind of backup the reasons for taking positive action in the first place you need that data collection exercise. Then secondly, we want the data collection so that we can identify what the particular issues are affecting those individuals, or candidates, rather than doing something sweeping that might not actually have the desired impact that we're going for.”

Joe Glavina: “Kate if I can come to you. Taking positive action is lawful provided you stick within the scope of what the Equality Act allows but it’s drafted very narrowly and if you get it wrong you can pay a big price in terms of reputational damage. So it’s a challenge.”

Kate Dodd: “It can be done and we've got lots and lots of clients at the moment who we work with on positive action. It is complicated, I'm not going to lie to you. I never ever give advice about positive action verbally. It is so complicated that it's the kind of thing that actually needs a proper sit down, you have to scratch your head a bit and you have to have everything written down, you have to have all of your evidence there because what positive action is, basically, is a way of taking action that's required in order to address an imbalance for people who share a particular protected characteristic, for example, but you need there to be evidence that what you're doing is required, and you need to show, really, that the action that you're taking is going to be capable of addressing that imbalance, but there is a real process to go through but, when done, it really is very effective.”

Joe Glavina: “Finally Kate, just thinking about HR’s role in this. We’re talking about the recruitment process so, presumably, HR does have a key role here?”

Kate Dodd: “Absolutely, and it's all about communication. It's how you communicate what you're doing. So if you are implementing positive action, don't hide it. Don't keep it as something that you hope people aren't going to find out about. You need to get out there, you need to explain what you're doing and why. It’s really important that we train managers in the whole process of recruitment because often what a manager will do is they will be given a diverse candidate list, these people will have been attracted to apply by the very carefully worded job adverts, very carefully placed job adverts, and then what happens is they come in and they have an experience with somebody who hasn't been properly trained in doing inclusive recruitment. So this individual, for example, might not realise about somebody's body language how that can be affected by culture, they might not realise how somebody's performance might be affected by neurodiversity, for example, and they might say, well, no, this person doesn't quite fit, or they're not quite polished enough, or I saw somebody who I felt more comfortable with, without recognising how bias comes into play in those situations. So, that's the kind of thing it's really important to do otherwise, no matter how much brilliant work you do on positive action, you will keep losing your candidates at the stage at which they're going forward to interview.”

The government’s guidance on positive action in the workplace was published on 17 April. We’ve put a link to it in the transcript of this programme for you.

LINKS
- Link to government’s guidance on taking positive action in the workplace