The RAF has revealed that an internal investigation found that a recruitment strategy aimed at increasing the number of female and ethnic minority applicants resulted in unlawful positive discrimination. In the quest for equality they had unintentionally gone beyond current legal boundaries which allow for positive action and had, by setting high diversity targets for recruiters, committed unlawful positive discrimination.
Employers need to understand the difference between positive action (which is permitted under current equality laws) and positive discrimination (which, with a few specific exceptions, is not). Here is our quick guide to the law in this area:
Employers need to understand the difference between positive action (which is permitted under current equality laws) and positive discrimination (which, with a few specific exceptions, is not). Here is our quick guide to the law in this area:
- Positive action involves taking lawful steps to improve equality for a group of people who share a protected characteristic. There are two types of positive action: general positive action, and positive action in recruitment and promotion.
- General positive action allows an employer to take proportionate action to enable or encourage a protected group to overcome or minimise a disadvantage, meet different needs of a protected group, and enable or encourage participation in an activity which the protected group has low participation in. The employer must reasonably believe that the disadvantage exists. An example might be offering management training to female staff in a business with a low number of women in management.
- Positive action in recruitment allows an employer to treat people with a protected characteristic more favourably than another candidate (provided that both candidates are as qualified as each other) where an employer reasonably thinks that people with a protected characteristic are disadvantaged or have disproportionately low participation in a role. The action taken must be a proportionate means of achieving the aim of minimising the disadvantage of the protected group or encouraging their participation in the activity.
- Employers cannot have a blanket policy of automatic preference for people who have a protected characteristic over people who do not. This would be positive discrimination and is generally unlawful.
- Positive action in employment is voluntary.
- The only examples of lawful positive discrimination in UK law at the present time are Regulation 10 of the Maternity and Parental Leave Regulations 1999 which provides that employees on maternity leave should be offered alternative employment before any other employees and the duty to make reasonable adjustments for those adversely impacted in the workplace owing to disability.
