Published 30th September 2020
In today’s climate following the Black Lives Matter movement, businesses are, more than ever, seeking to be more diverse and inclusive within their organisation.
However, businesses should be cautious of and aware of positive discrimination. Although we encourage businesses to be more diverse, positive discrimination can be a serious issue.
This blog will provide you with more information on what positive discrimination is and how it can be used appropriately, but also how to avoid unlawful actions because of it.
What is positive discrimination?
Generally, positive discrimination is unlawful in the UK. An example of such is an employer recruiting a person because he or she has a relevant protected characteristic, e.g their race, rather than because he or she is the best candidate. This would be discrimination under the Equality Act 2010.
Moreover, it is unlawful to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic. However, there are very rare circumstances when this can be lawful for workers to have a particular characteristic; an example of such is the women’s refuge requiring all members of staff to be women.
What is the difference between positive discrimination and positive action?
Can you have positive discrimination? Positive discrimination is unlawful, whereas positive action is lawful. It is important for businesses to understand the difference between the two. The Equality Act 2010 allows you to treat an applicant or employee with a protected characteristic more favorably in connection with recruitment or promotion than someone without that characteristic, providing they’re equally qualified for the role, this would be a positive action.
To clarify, the following would be regarded as positive discrimination and therefore unlawful:
- Hiring a candidate of a particular race because you worry that there is a lack of that particular race in your workplace, even though they are unqualified.
- Promoting a woman who is underqualified for the role, but you worry that there are only males’ in managerial positions.
However, hiring someone of a particular race or gender, where they are equally qualified, may be positive action and therefore could be lawful.
The risk of positive discrimination for your business
If an organisation was to hire or promote as stated above, then it is likely that unsuccessful applicants that might have been more qualified for the role will issue a claim for discrimination at an employment tribunal. Not only are there risks of legal action but this can greatly affect your employee morale and your business reputation should employees feel like the recruitment and promotion criteria are unfairly based on a person’s protected characteristics and not how qualified or suited they are for the role.
How can businesses avoid positive discrimination?
Businesses should have a fair recruitment and promotion criteria to which would be predetermined before the interviews to ensure everyone is accessed from the same criteria. This could include predetermined questions which would be the same for each candidate to which a scoring system could be used to provide clear statistics to whom is better suited for the role based on experience, knowledge, and qualifications and not their protected characteristics. You could also consider blind recruitment, where you are unsure of the particular characteristics of any candidates for roles or promotions.
At Thrive we encourage and promote businesses to be more diverse, but it is important you are aware if positive discrimination and its effects. Read our blog on diversity and inclusivity in the workplace to find out more about the many benefits for businesses.
Need more help?
Did you know we provide outsourced HR services to businesses?
As an owner-run company, we know the pains of having to wear many hats and how time is precious. As qualified employment and HR lawyers, we know the consequences of getting HR decisions wrong. We can work with you to let you focus on what you really need to be doing in the business with the peace of mind that all letters and decisions are run past a qualified lawyer before you implement them. We can assist you with your recruitment process to ensure the process is fair and avoid any potential legal difficulties arising.
When you partner with Thrive for outsourced HR support, we can reduce your stress and free you up to work on the business and to make HR decisions with confidence.
With people at the core of every successful business, keeping on top of the ever-changing legislation and making the most out of your people can be challenging, but we are here to help.
We can also support your business in the event an employee approaches ACAS or the employment tribunal.
Get in touch today to invest in your business and make your HR stress free.
Written by the Thrive Tribe