DISCRIMINATION - 21.10.2020

Black jobs matter - positive action in recruitment

The Black Lives Matter movement has put the issue of workplace diversity firmly under scrutiny. To help ensure future diversity, one option is to use positive action. What is it and how does it differ from positive discrimination?

Positive discrimination

Positive discrimination in recruitment is unlawful. This is where you give preference to job applicants with under-represented protected characteristics, e.g. those who identify as LGBT+, where there are other applicants who are better qualified (there is an exception in relation to disability).

Pro advice. It’s unlawful positive discrimination, for example, to offer a job to a woman in a male-dominated workforce to “level the playing field”, if there’s a male applicant who is better qualified for the role.

Positive action

On the other hand, positive action, both generally and in recruitment and promotion, is permitted under ss.158-159 Equality Act 2010 . The general positive action provisions state that where you reasonably think that persons with a protected characteristic suffer a disadvantage, have particular employment needs or are disproportionately under-represented in the workforce, you can take certain actions to enable or encourage those with that characteristic to reduce that disadvantage, meet their needs or increase participation. The action taken must be a proportionate means of achieving your aim.

Pro advice. Positive action is optional. The action you can take is broad and may include encouraging those from particular disadvantaged groups to apply for work, such as targeting advertising at or providing training or networking opportunities for them, e.g. open days and mentoring programmes for ethnic minorities.

In relation to recruitment and promotion, you must reasonably think that persons with the relevant protected characteristic suffer a disadvantage or are disproportionately under-represented. If you do, positive action is then lawful where the following criteria are satisfied: (1) A is “as qualified as” B to be recruited or promoted; (2) you don’t have a policy of treating persons who share the same characteristic more favourably in connection with recruitment or promotion than persons who don’t share it; and (3) taking the action is a proportionate means of achieving your aim of overcoming or minimising the disadvantage or under-representation.

Pro advice. It means that where you’re faced with two applicants of equal merit, you can offer the role to the one from the under-represented group. You must take a case-by-case approach.

Pro advice. Other steps you can actively take to address diversity in recruitment are to: (1) review the diversity of your recruitment team (do they reflect the diverse talent you want to attract?); (2)  consider diversity at all levels of recruitment, not just in senior roles; (3) introduce unconscious bias training, particularly for those involved in recruitment; (4) consider how your recruitment practices might affect the applications you receive, e.g. are you advertising in the right places and in a way which doesn’t discourage ethnic minorities from applying?; and (5)  standardise your interview processes to reduce the opportunity for bias.

Evidence requirements

According to the EHRC Employment Statutory Code of Practice (see Follow up ), you need reliable evidence of the disadvantage/needs/under-representation, but it doesn’t need to be sophisticated statistical data. A starting point is to review the ethnicity profile of your workforce. For positive action in recruitment, ensure you’ve carefully evaluated the qualifications of the relevant applicants and maintain good records of your decision-making process.

EHRC Employment Statutory Code of Practice

Positive action refers to measures you can take to help alleviate disadvantage experienced in the labour market by groups sharing a protected characteristic. However, you can’t offer employment to, say, a black job applicant purely on the basis of their race, as that constitutes unlawful positive discrimination.

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