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Positive action speaks louder than words: 5 principles for employers

Global
31.03.22
19
What types of positive action to address underrepresentation and improve diversity in shortlists or hiring slates are permitted in the UK and in other countries?

What is positive action?

Positive action involves taking targeted steps to address underrepresentation or disadvantage experienced by people with characteristics protected by UK law (for example race, sex, ethnic origins etc). It is about ensuring equality of opportunity. Positive action is not the same as positive discrimination, which is (broadly) unlawful in the UK.

Initiatives involving positive action have generated a lot of interest in the UK as companies strive for greater diversity, but the legal framework is more restrictive than many people realise and does not necessarily allow employers go as far as they might like in addressing historic barriers and lack of opportunity.

What is the law on positive action in the UK?

The starting point is that an employer must reasonably think that a protected group:

  • suffers a disadvantage (including legal, social or economic barriers to accessing employment opportunities);
  • has particular needs (e.g. IT training needs or needs in relation to the English language); or
  • does not participate enough in an activity (including employment and training).

 

UK law allows proportionate positive action to meet the relevant needs, reduce the disadvantage or increase participation.

There is also a particular provision of UK law (known as the ‘tie-breaker’ provision), which allows employers to go one step further in recruitment and promotion decisions when there is a stalemate between two candidates. It allows employers to give preferential treatment to a candidate from an underrepresented group, provided that:

  • they are ‘as qualified’ to be recruited or promoted;
  • granting the preference is proportionate; and
  • there is no policy of automatically granting a preference.

 

There is very little UK case law on this issue but taking the legislation, existing guidance and limited case law into account, we have distilled the following guiding principles for employers adopting positive action programmes in the UK.

Principle 1: evidence

You need evidence of underrepresentation

Positive action which seeks to benefit people from protected groups over others can only be done if an employer reasonably believes that a protected group suffers a disadvantage, has specific needs or does not participate enough in an activity.

Demonstrating that women are underrepresented in senior management positions may be relatively straightforward and is likely to be supported by gender pay gap data but establishing that ethnic minorities are underrepresented may be trickier. It is likely to involve an initial drive to gather ethnicity data within the workforce along with other contextual data – for example, about the local region. It is unclear whether an employer can simply look at the position of all black, Asian and minority ethnic (BAME) employees compared to white employees, or if a more granular analysis would be required.

Principle 2: no automatic employment offers

You can’t offer employment automatically on basis of a protected characteristic

Employers cannot reserve positions for underrepresented groups without this leading to discrimination against other candidates who would have been appointed except for their protected characteristics. It is unlawful to refuse to appoint a candidate because they have the ‘wrong’ protected characteristic, apart from in the very rare scenario where having a protected characteristic is an occupational requirement for the role.

The furthest you can go is to apply a preference in a tie-breaker situation but even in those circumstances, you cannot have a policy of automatic preference: there must be some individual case-by-case assessment and a proportionality analysis.

The Employment Tribunal (ET) have considered the case of a white, heterosexual man, who applied for the position of police constable with the Cheshire Police (Furlong v Chief Constable of Cheshire Police). He was unsuccessful because the police chose to give automatic preference to all LGBT, BME and female candidates who achieved a pass mark. The ET upheld his claim, ruling that the police’s positive action programme fell outside the scope of the tie-breaker provision. This was because police had applied a blanket automatic preference, but the qualitative assessment data showed that not all candidates who passed were equal – in fact, some were clearly much better qualified than others.

In our experience, most employers are reluctant to use the tie-breaker provision. This is mainly because of the need to conclude that two candidates could do a job equally well, and the fact that an unsuccessful candidate is likely to challenge that conclusion.

Ultimately, UK law does not allow candidates from underrepresented groups to be preferred over other better qualified candidates. Recruitment and selection outcomes need to be merit-based, except in the narrow and uncertain tie-breaker situation. In practice, this has led to a focus on changing the diversity profile within more junior or entry-level positions, where it may be easier to influence the talent pool. As roles get more senior, positive action may be less effective because of the lack of diversity in the existing talent pool with the necessary experience, the net result often being that the pace of change feels too slow.

Principle 3: proportionate action

You can take proportionate action to help people get access to employment

There is a crucial distinction between offering employment and putting someone onto an equal footing to get access to employment. Positive action is lawful when it is designed to put underrepresented or disadvantaged groups into a position of equal opportunity, there is sufficient evidence of disadvantage or underrepresentation and your steps are proportionate.

Examples of such measures include training, sponsorship, mentoring or accelerator programmes, outreach work in selected schools, and holding open days for particular cohorts. You can target your measures primarily at the underrepresented group, or potentially even exclusively at that group where that is a necessary and proportionate means of achieving your objectives.

To demonstrate that your positive action programme is proportionate, you will need to make sure that it is time-limited, targeted, and takes account of the extent of the underrepresentation or disadvantage and the impact of any other diversity measures or commitments.

Principle 4: targets not quotas

Improving diversity of shortlists is effective, but you should set targets not quotas

Including multiple women on shortlists for recruitment and promotions has been listed as the an effective action employers can take to close their gender pay gap (2018 report).

There is no reported UK case law on this type of measure. Reserving places on shortlists is intended to give people an equal opportunity of getting the job, rather than to influence the eventual employment decision. The limited case law of the European Court of Justice about guaranteed interview schemes indicates that it might regard reserving places on shortlists as different from employment quotas, and potentially lawful if proportionate.

However, UK guidance has adopted a strong stance against guaranteeing places on shortlists. In the increasing diversity in the TV and broadcasting industry guide (updated in March 2019) it is stated: ‘Under British law, places cannot be reserved on shortlists or guaranteed interviews offered to some people from certain protected groups…as this would unlawfully discriminate against others (unless the recruitment relates to a disabled person).’

Nonetheless, operating targets, as opposed to hard quotas, would be within the scope of the provisions on lawful positive action discussed above, so long as there is sufficient evidence of disadvantage and the steps are proportionate. With a target-based approach, you are compiling the shortlist based on merit rather than giving preferences to ensure that a quota is met. Targets need to be realistic and based on an assessment of the underlying market and employers should make clear to recruiters that they must not unlawfully discriminate against potential or actual candidates in trying to achieve them.

Principle 5: consider other tactics

Some effective tactics don’t count as positive action and are always lawful

It is clear that action to benefit a particular protected group which does not have any impact on other groups is always lawful, and shouldn’t even be classed as positive action. For example, placing adverts in magazines read by particular groups alongside national media, and auditing selection criteria to remove any discrimination.

A more modern-day example might be working with charities who will help identify and put forward candidates from particular groups or backgrounds. This does not restrict applications from any other candidate, so long as all your other recruitment channels remain open.

Another example would be reworking your recruitment processes to improve transparency about what is expected and what ‘good’ performance looks like, i.e. what you will be looking for candidates to demonstrate and how you’re going to test that.

Conclusion

The law in the UK on positive action remains unclear in several important respects and there is very limited case law. While the tie-breaker provisions remain unattractive, employers can adopt effective and lawful positive action programmes ranging from diverse candidate shortlist targets through to targeted support and development initiatives. Despite this, it remains the case that the legal framework is heavily restricted and does not necessarily allow employers to move as far or as fast as they would like.

For more information about discrimination

The view from other places.

Belgium:
Brazil:
Chile:
Colombia:
Denmark:
Germany:
Hong Kong:
Hungary:
Ireland:
Poland:
Sweden:
Turkey:
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
Authors
Lucy Lewis
Lucy Lewis
Partner - United Kingdom
Lewis Silkin