Positive discrimination versus positive action

There is an overwhelming business case for diversity (see article 64). Nearly three-fifths of UK organisations have a diversity strategy, most commonly used in monitoring recruitment and training interviewers. In addressing initiatives to make the workplace more diverse, the guiding principle is: positive action is legal, but positive discrimination is illegal.

Achieving a balanced workforce

It is illegal to treat someone applying for a job more favourably on the grounds of the nine ‘protected characteristics’ – race, disability, age, gender, religion/belief, marital status, pregnancy, sexual orientation, gender reassignment – unless there is a genuine occupational requirement for doing so. But it is legal for employers to achieve a more balanced workforce by using positive action, entirely voluntarily, to recruit or promote someone with a protected characteristic with three important provisos:

• the person in question is as qualified as other applicants. This may be difficult to ascertain, particularly in non-technical or more senior roles where candidates’ experience is likely to be more varied, which could lead to challenges from unsuccessful candidates

• the employer does not have a policy of treating persons of the particular under-represented or disadvantaged group more favourably in connection with recruitment than persons who do not share the relevant protected characteristic

• the more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation.

Targeting under-represented groups

Employers can also focus their recruitment activity in particular areas to encourage more applicants from under-represented groups. For example, advertising vacancies online and in publications which have a high readership among a group with the protected characteristic needed to create a balanced workforce.

Although organisations may thus encourage applications from under- represented groups, subsequent selection procedures must be non-discriminatory. It is also acceptable to set a target figure to achieve a balanced workforce – but not to set a quota which involves only employing people from under-represented groups or favouring them throughout the application process.