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- Understanding the difference between positive action and positive discrimination
Understanding the difference between positive action and positive discrimination
- Discrimination
Peninsula Team, Peninsula Team
(Last updated )
Peninsula Team, Peninsula Team
(Last updated )
Recruitment practices in the UK public sector have recently come under scrutiny following reports of prioritisation of ethnic minority candidates throughout the NHS, and a police force temporarily blocking white British people from applying to its force. This has prompted questions around the use of lawful ‘positive action’ and the fine line between it and unlawful ‘positive discrimination’.
What’s the difference?
Positive discrimination is when a protected characteristic is used to justify recruitment, promotion or training decisions, regardless of whether the individual benefiting is suitably matched for the role or if their characteristic is underrepresented in the organisation. For example, promoting a female employee, where others are objectively more qualified / have more experience, solely on the basis of improving representation of women in a management team. This is prohibited under the Equality Act 2010 and can lead to costly tribunal proceedings.
Positive action, on the other hand, is permitted. This is where an organisation reasonably believes an individual with a protected characteristic suffers a disadvantage compared to those without and therefore takes action to minimise that disadvantage.
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What is a protected characteristic?
Understanding positive action
Where an organisation lawfully uses a protected characteristic as the foundation for making a number of business decisions that benefit an individual, or group of individuals, they are taking positive action. This is permitted if the reason behind it is to increase the number of people with a particular protected characteristic, to promote equality. However, employers need to be able to show that people with that characteristic are under-represented, have different needs, or have historically been disadvantaged in employment.
Remember that it is only encouragement that is permitted under this provision. It is not permitted to exclude any job applicant from employment opportunities because they do not possess the protected characteristic in question, for example, as this would be discriminatory.
Using positive action in practice
Positive action may be used in two areas, one of which is recruitment and promotion. To fall into this category, it must be possible to demonstrate that the individual benefiting from positive action is of ‘equal merit’ to other suitable candidates and possess a protected characteristic that the employer ‘reasonably believe to be’ underrepresented in the organisation.
An example of this could be using positive action to hire a female mechanic on the basis of her sex, so long as she possesses the same level of skills and experience as other male candidates who have also been deemed suitable for the role.
Positive action may also be used for encouragement and training purposes. This allows employers to put forward individuals with certain protected characteristics for training and development opportunities in favour of others. Again, it must be possible to show that these individuals are of ‘equal merit’ to other colleagues and come from an underrepresented group.
An example of this would be putting an employee from an ethnic minority forward for an external training opportunity in favour of another employee, on account of their race, so long as both are equally matched, and the selected individual comes from an underrepresented group.
To summarise, positive action is lawful, whilst positive discrimination is not. To use positive action it must be shown that there is a reasonable need to do so, and that the candidates being considered are of ‘equal merit’.
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- Understanding the difference between positive action and positive discrimination
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