However, implementing change can be difficult. One major stumbling block is that you cannot, except in restricted scenarios, positively discriminate by specifically hiring or promoting people simply because they have underrepresented protected characteristics, or by setting quotas (rather than aspirational targets).
Doing so leaves businesses open to discrimination claims.
What is positive action?
While you cannot positively discriminate, you can legitimately take positive action. This generally refers to either:
- Proportionate actions to enable or encourage applicants/employees with a protected characteristic to overcome or minimise any disadvantage that they face. This can cover meeting their particular needs or encouraging them to participate where the business reasonably believes they are disproportionately represented (usually evidenced by equality statistics).
- ‘Tie-breaker’ positive action in recruitment and promotion - where if two candidates are equally well-qualified an employer can select the candidate with a protected characteristic that is underrepresented or otherwise disadvantaged within the workforce. The scenarios where this can be used, however, are fairly limited in practice.
It is not unlawful to discriminate in favour of a disabled person. Employers have a duty to make reasonable adjustments to compensate for disadvantages related to disability.
Positive action in practice
Provided you are clear about what you aim to achieve and that the proposed action is reasonably necessary to achieve it, then you can encourage people from disadvantaged groups to apply for work, so long as hiring decisions are on merit alone, save where you have two equally qualified candidates, and you provide required training.
Positive actions include:
- Policies of always interviewing disabled candidates.
- Targeted open days.
- Targeted job adverts.
- Work experience internships.
- Exclusive training opportunities.
- Setting aspirational targets, e.g. for board or management diversity, in order to increase wider participation.
- Providing grants/bursaries.
To be lawful, these actions must target those with protected characteristics that you reasonably think are disadvantaged, have particular needs and/or have low participation.
Further reading
Pushing for progress: the workplace’s role in political and social movements
Diversity and inclusion key to agility post-pandemic
How to create a diversity strategy that delivers
How to do this lawfully and effectively
You will need to analyse your current workforce diversity – is there anonymised ethnicity data in your organisation split by grade? If not, can you obtain this with a survey? Do you have similar anonymised data on job applicants?
You will also need to identify what disadvantages or particular needs those with underrepresented protected characteristics face and understand why their participation is low. This is difficult if your workforce currently lacks diversity, as in-house working groups may not be all that informative. Perhaps consider commissioning research, maybe together with other interested businesses in your sector.
Positive action, particularly if is not effectively communicated, may attract criticism or claims from those without the underrepresented protected characteristics. Have you taken advice on the options available and considered proportionality? Does the board have the appetite for some challenge in order to achieve long-term beneficial change?
Examples of lawful positive action in practice
- Fat Beehive, London Roundhouse, Southbank Centre, Citizens Advice, Manchester University and others explicitly state on job opportunities that they welcome applicants from eligible candidates from a BAME background or who are deaf or disabled.
- Lloyds Banking Group launched a ‘race action plan’ which includes a race education programme, a target to increase black representation in senior roles to at least 3% by 2025, a greater focus on recruiting and developing black colleagues and committing to publishing an Ethnicity Pay Gap report in 2020.
- The Civil Service, BBC, The Greater London Authority, Cowshed, the Golden Thread Gallery and others have created paid internships solely for candidates who meet specific diversity requirements.
Charlie Maples, senior associate in the employment practice, Foot Anstey
