#Black Lives Matter - When is positive discrimination legal?

In the context of ‘BlackLivesMatter’, now seems the perfect time to ramp up our actions to dismantle the persistent barriers that people from Black, Asian and Minority Ethnic backgrounds face in the workplace. But when does the law curb positive action? Is positive discrimination ever legal? During Covid 19 we are providing additional support for students with medical conditions who are shielding – but does this mean that we are discriminating against students who are not shielding? Can we use positive action to address socioeconomic disadvantage? These are questions I have been asked recently. Here are my answers.

In the context of ‘BlackLivesMatter’, there have been a number of grand gestures. For example, Reddit’s co-founder, Alexis Ohanian, resigned, and urged the company’s board to replace him with a black candidate. However, although Ohanian’s proposed hiring policy for Reddit is well-intentioned, it would fall foul of the UK’s discrimination laws if a competing white candidate were to apply and be overlooked on account of his or her race.

In my experience, there is much confusion and frequent misunderstanding over what is meant by ‘positive action’. But this unfortunately means that many providers fail to take positive action initiates as they are fearful that these may not be lawful. Yet with the BlackLivesMatter movement, now seems like the perfect time for employers to seriously consider implementing positive action strategies.

What is positive action?

The Equality Act 2010 permits providers to take positive action measures to improve equality for staff or students who share a protected characteristic. This could involve, for example, actions to increase the number of staff from Black, Asian and Minority Ethnic backgrounds in senior roles in which they are currently under-represented.

Positive action can also be used to meet a group’s particular needs, lessen a disadvantage they might experience or increase their participation in a particular activity. This could involve, for example, providing a named member of staff to act as support for a student undergoing gender reassignment or providing ‘female only’ taster days for a curriculum area where females are underrepresented.

When can we use positive action?

You can use positive action if you have some evidence that people who share a protected characteristic:

• experience a disadvantage because of that protected characteristic or
• have different needs from people who don’t share the protected characteristic or
• participation is disproportionately low

You must be able to show that positive action is an appropriate way for your organisation to achieve one of these aims and the steps you are taking have been carefully thought through and are a proportionate means of achieving a legitimate aim. The key here is that action must be ‘proportionate’. A blanket policy of hiring candidates from Black, Asian or Ethnic minority backgrounds by default would not be proportionate, whereas a policy of fast-tracking candidates with these backgrounds to a first round interview, or guaranteeing at least one candidate from this background is interviewed for every new role might well meet the threshold.

The process of showing that a particular group suffers a disadvantage does not necessarily involve the use of sophisticated statistical data or research – the employer must just reasonably think that one of the statutory conditions applies. And the current climate with the wealth of information about the difficulties and barriers that people from Black, Asian or Ethnic minority backgrounds is likely to provide the evidence needed.

Can we use positive action to address socio-economic disadvantage?

Positive action measures can only be applied in relation to one or more of the nine protected characteristics of the Equality Act 2010. Socioeconomic status is not a protected characteristic in the Act. However, you might be able to link disadvantage to a particular protected characteristic even if the main cause of disadvantage is socioeconomic. For example, if you have lower success rates for white males living in socially deprived areas, you may be able to use gender and or race to justify positive action strategies.

Do we have to take positive action initiatives?

Taking positive action is voluntary. However, providers are covered by the Public Sector Equality Duty and taking positive action may be a way of showing how you are meeting this duty to eliminate discrimination, advance equality or foster good relations.

What is the difference between positive action and positive discrimination?

Positive action is not the same as positive discrimination, which is illegal, although there are three important exceptions – see below. Positive action strategies could include, for example, broadening your advert processes to try to encourage people from Black, Asian and Minority Ethnic backgrounds to apply for a particular job role. You might include a statement on your advert that particularly welcomes people with this heritage. You might want to provide job or interview coaching to internal candidates with this heritage. However, during the recruitment and selection process you must appoint the best candidate for the job (although again, there are exceptions, see below).

The three important exceptions

1. An occupational requirement.

You are allowed to positively discriminate if you can show that there is a genuine reason why someone with a particular protected characteristic must be appointed for a job role and responsibility. It is important to appreciate that these situations are narrowly defined. One example might be if you were employing a Principal of a faith college, where you want to recruit someone to this senior positive who holds that faith.

2. The tie-breaker scenario

The tie-break provision is to be found in section 159 of the Act and allows an employer to treat one candidate more favourably because that candidate has a protected characteristic, but only in tightly prescribed circumstance. Three criteria must be met:

• First, the candidates must be of equal merit for the post or promotion, so the tie-break provision could not be used to favour a less qualified candidate.  This highlights the importance of using objective selection criteria. The decision to invoke this tie break provision must only be taken after everything else has been considered, for example qualifications, previous experience, performance at interview. Only at the end of the recruitment process, where you have two candidates who are ‘level pegging’ after everything has been considered, are you able to invoke the tie breaker provision – and this s a voluntary decision for organisations to take. 

• Secondly, there must not be a policy of treating people who share the protected characteristic more favourably.  This is to ensure that each case is taken on its merits.

• Finally, treating the candidate more favourably must be a proportionate means of achieving one or more of the aims described above, namely, if you have some evidence that people who share a protected characteristic:

- experience a disadvantage because of that protected characteristic or

- have different needs from people who don’t share the protected characteristic or

- participation is disproportionately low

The Equality and Human Rights Commission have expressed concern that many opportunities to use this tie-breaker provision are missed because of a lack of understanding on positive action. You should make sure that:

a) senior leaders have considered the opportunity of using the tie breaker scenario, for example during recruitment and selection, and have incorporated their decisions in the corresponding policies

b) staff are appropriately trained, for example staff involved in recruitment and selection processes such as shortlisting and interviews

3. Providing reasonable adjustments for disabled people

Normally the Equality Act 2010 works both ways. For example, it is unlawful to discriminate against a woman in favour of a man, or against a man in favour of a woman. It is unlawful to discriminate against a person from Black, Asian or Ethnic Minority background in favour of someone with a White background, or against a person with a White background in favour of someone with a Black, Asian or Ethnic Minority background

However, an exception is for the protected characteristic of disability. The Equality Act 2010 does not make it unlawful to discriminate against a non-disabled person in favour of a disabled one. A simple example to illustrate this point is the use of accessible car parking spaces. These are for staff or students with mobility difficulties – staff or students without these difficulties will be expected to park further away. You could argue that you have disadvantaged non-disabled people by making them walk further to get into the building. However, reasonable adjustments recognises that discrimination can sometimes be needed to ensure equality of outcome – in this example the outcome that all can get into the building with relative ease.

You can find out further information about positive action on the Equality and Human Rights Commission on thier website.