Treating one individual more favourably than another because they have a protected characteristic is largely prohibited under the Equality Act 2010.
However positive action in the workplace can work to promote equity, equality and inclusion for individuals who have historically been discriminated against or faced barriers to work.
In this article, we'll discuss positive discrimination in the workplace and look at the difference between this and positive action.
What is Positive Discrimination?
Positive discrimination in the workplace basically refers to a situation in which an employee gives preferential treatment to people on the basis that they have a protected characteristic, rather than due to their merit or suitability for a role.
There are limited scenarios when this is allowed.
- If there is an occupational requirement (such as employing a female support worker in an domestic abuse centre).
- When making reasonable adjustments for a disabled employee or job applicant.
Examples of Positive Discrimination Which are Not Allowed
- Offering a job to someone from a minority group to fill a quota rather than because they are the best candidate for the role is unlawful unless an employer can demonstrate that it was a proportionate means of achieving a legitimate aim.
- Promoting someone less qualified to a role based on the fact that they are younger than the rest of the team.
- Making a better performing employee redundant in favour of a disabled employee.
Risks for Employers Around Positive Discrimination
Employers face an increased risk of a tribunal claim for unlawful discrimination if they treat job applicants or employees more favourably due to a protected characteristic.
The claim could be brought by the person overlooked for the job or promotion.
For example, in Furlong v Chief Constable of Cheshire Police ET/2405577/18, the claimant, a white, heterosexual man, applied for a police constable role with the Cheshire Police. He was unsuccessful, despite passing the assessment centre and interview stages of the recruitment process. Cheshire Police gave preference to women and candidates from LGBT and BME backgrounds as they were under-represented in the force.
The ET held that whilst the groups in question were under-represented, Cheshire Police had acted unlawfully by giving preference treatment to candidates who were not as well qualified as the claimant.
A further risk employers face is the adverse impact on morale and motivation within the workplace, if staff feel overlooked or that their skills, experience and performance is not recognised.
If an employer’s recruitment policy disregards skills and experience, this may serve to dilute the level of skills and experience held by its employees.
Positive Action
There are certain actions employers can take to support those with protected characteristics to overcome or lessen disadvantage. Such actions do not need to increase the risk of a tribunal claim as they are lawful.
The Equality Act allows for positive action. This differs from discrimination and doesn’t negatively affect other groups.
An employer is able to take positive action to support job applicants or employees where they may be at a disadvantage because of a protected characteristic, or they are under-represented within the organisation.
E.g. Providing funding and targeted initiatives in sectors where certain minority groups are under-represented.
Positive Action versus Positive Discrimination
An example of positive action is advertising a job role which targets a specific under-represented group, such as women for roles in engineering. This would become unlawful discrimination if off the back of this advert a less qualified woman was selected over a more qualified male.
However, where an employer interviews two equally qualified or matched applicants for a role, positive action does allow for selection of the applicant from the under-represented group.
Increasing diversity and embracing inclusivity within the workplace is hugely beneficial, however, ensuring this is done lawfully is imperative. If you need any advice on positive discrimination please contact us on 03333 215005
