Understanding what is meant by positive discrimination, and how this applies within the workplace, plays an important part in creating a fair and inclusive working environment without unlawfully discriminating against anyone.
The following guide examines the concept of positive discrimination in the context of equality and diversity at work, including the difference between positive discrimination and positive action. It also looks at how positive action can form a vital part of any talent management policy to attract and recruit a wider pool of talented workers, and a wealth of experience, to your organisation.
What is positive discrimination in the workplace?
While the Equality Act 2010 offers no definition of positive discrimination, it essentially refers to the automatic favouring, without proper consideration of merit, of under-represented individuals from minority groups over individuals in majority groups. Put another way, it refers to the preferential treatment of a group of people over another because they possess a protected characteristic.
The nine protected characteristics as defined under the 2010 Act are as follows: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation.
Treating one person more favourably than another purely because of a protected characteristic is generally prohibited, unless a strict occupational requirement applies, for example, where a women’s refuge requires all members of staff to be female. Positive discrimination because of a person’s disability is also permitted, where an employer is required to make reasonable adjustments to remove any disadvantage that a disabled job applicant or employee may be facing.
Examples of positive discrimination at work
Broadly speaking, positive discrimination is the unlawful process of favouring prospective or existing employees from a protected characteristic group. This can often arise where a job applicant or employee is given preferential treatment because they possess a protected characteristic, or is recruited or promoted specifically because of that characteristic, regardless of individual merit.
This could result in an employer automatically favouring applications from, for example, women or ethnic minorities, based solely on the fact that they are female or from a non-white background, rather than because they are the most qualified or the best candidate for a particular job role.
Positive discrimination could include setting quotas or benchmarks in the recruitment process to take on a proportion of people from a protected characteristic group, or promoting a specific number of people within a minority group, in some cases entirely overlooking an applicant’s aptitude and ability.
For example, where two people are being interviewed for a position, and one of the applicants is female or from an ethnic minority group but far less qualified than the other candidate, it would be unlawful to hire that individual, regardless of any need to employ more women or people from non-white backgrounds.
Automatically treating all job applicants or employees who share a protected characteristic more favourably, or guaranteeing them recruitment or promotion because of that characteristic, would be regarded as discriminatory.
Consequences of positive discrimination
Where an employer treats a job applicant or employee more favourably by reason of a protected characteristic, they may find themselves facing a tribunal claim for unlawful discrimination. This could be from an individual who has been overlooked for a job or promotion, especially where that individual was more qualified or suitable for the role, or has been treated less favourably at work.
This is well illustrated in the case of Mr M Furlong v The Chief Constable of Cheshire Police (2018) where the white heterosexual male claimant was unsuccessful in his application to join the force, despite interviewing better than other candidates, whilst several under-represented minorities were successful.
It was held by the employment tribunal in this case that in an effort to boost the diversity of its workforce, Cheshire Police had acted unlawfully in treating lesser-qualified candidates with protected characteristics more favourably.
In the context of discrimination cases, it is also important to remember that there is no qualifying period of service for a person to be eligible to claim unlawful discrimination, and there is no cap on the award of damages.
How is positive discrimination different to positive action?
Positive discrimination must not be confused with positive action, the latter being one of the limited exceptions to the prohibition on discrimination. This is because positive action is not designed to, nor is likely to, discriminate against or negatively impact on others groups of people within the workplace.
By law, positive action is permissible, whereas positive discrimination is unlawful. It is therefore important to understand the difference between positive discrimination and positive action when looking to diversify your workforce.
Broadly speaking, positive action is where proportionate steps are taken by an employer to lessen any disadvantage, or remove barriers or obstacles, that it reasonably believes are faced by people from protected characteristic groups.
An employer is permitted to take steps to assist job applicants or employees in circumstances where:
- They are potentially at a disadvantage because of a protected characteristic, and/or
- They are under-represented in the company or organisation, or whose participation is disproportionately low, because of a protected characteristic, and/or
- They have specific needs connected to a protected characteristic.
Examples of positive action at work
Positive action at work could include welcoming applicants from ethnic minority groups where these groups are under-represented in the workforce, or providing training courses to give women a better chance of getting a promotion where there are too few females in senior management roles.
By way of example, where an employer identifies a disproportionately low number of female staff at senior management level that is potentially losing the business a wealth of experience and creativity, all female employees could be offered a programme of training to help them to develop management skills.
This could help to increase the proportion of female applicants and female appointments, creating a more diverse and representative workforce, and even potentially leading to an increase in productivity.
Positive action can also be used in a tiebreaker situation, where there are two equally qualified and suitable candidates for a role. In this way, when choosing between two people who are both right for the job, positive action can be used to select the person from a protected characteristic group with a view to diversifying your workforce. However, all candidates must first be rigorously assessed and scored objectively against their experience and qualifications.
It is important to remember that it would not be lawful to give the job to someone from a protected characteristic group where the other candidate is better for the job, simply because they possess a particular characteristic.
Positive discrimination & talent management
Positive discrimination should not be used to recruit or promote those who possess a protected characteristic, not even when you are legitimately looking to diversify your workforce. In fact, if positive discrimination was permissible and you were able to hire someone, for example, purely because of their gender or race, you could potentially run the risk of recruiting or promoting people who are unsuitable for the role, overlooking more suitably qualified candidates.
In contrast, positive action can be used to lawfully boost the participation of under-represented groups, or remove barriers and obstacles for those who are at a disadvantage, because they possess a protected characteristic. In this way, by taking lawful steps to lessen any disadvantage suffered, or encourage greater participation, you will benefit from a wider pool of talented workers from which to recruit and promote without discriminating against others.
However, when taking steps to ensure that minority groups have equal opportunities within your workplace, you must still exercise caution when recruiting new talent or promoting existing employees into more senior positions so as to avoid accusations of positive discrimination.
Despite the benefits of using positive action within the workplace, either when deciding which candidate to recruit or promote, or to provide support and training to increase the participation of people with a particular protected characteristic, this does run the risk of allegations of favouritism.
For those applicants or employees who miss out on a job or promotion it can seem unfair, even where a lawful process has been implemented. It is therefore good practice, where at all possible, to try to distinguish between candidates based on their overall attributes, ability and experience, together with any relevant qualifications, rather than because of a protected characteristic.
Positive discrimination & disability
Positive discrimination because of a person’s disability is permissible, where preferential treatment for those who suffer from a disability within the workplace is one of the few exceptions in employment law to the general prohibition on discrimination.
Under the Equality Act 2010, an employer can lawfully treat job applicants or employees who are disabled more favourably because of their disability than non-disabled candidates or employees. Moreover, employers are under a positive duty to make reasonable adjustments within the workplace to remove any disadvantage suffered by those with a disability.
As an employer, you must consider making reasonable adjustments in any circumstances where you been made aware of an applicant’s or employee’s disability, for example, where that individual asks for adjustments to be made.
You should also look into what workplace adjustments may need to be made in circumstances where a disabled employee is having difficulty with any part of their job, or an employee’s sickness record is clearly linked to their disability.
It is important to remember that any failure to make reasonable adjustments in the workplace to ensure that an employee or job applicant is not substantially disadvantaged in performing or applying for a job compared with non-disabled individuals may be regarded as unlawful.
However, the question of whether any adjustments are ‘reasonable’ will depend on whether they are practical for you to make, having regard to the resources of your company or organisation, and whether or not these adjustments will be effective in overcoming or minimising the disadvantage.
Examples of reasonable adjustments might include changes to the physical layout of the workplace or the provision of specialised equipment or support. It could also include changes to the working arrangements of an employee. This could involve, for example, amended duties or altered hours, or even a phased return to work where someone has been off work on long-term sick leave.
Positive discrimination FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
