The 2019 novel coronavirus disease (COVID-19) pandemic has been punctuated by one colossal movement around the world: Black Lives Matter. Naturally this has catapulted the issue of diversity to the front of mind of many employers. But just where does the line between legal obligation and discretion lie with employers on the issue of diversity? And how can employers legally go about making impactful changes to their diversity and inclusion practices? This article looks at the legal distinction between positive action (permitted under the Equality Act 2010 (EqA 2010)), and positive discrimination (which is unlawful).  

The potential benefits of positive action to employers are huge, including a dynamic and challenging workforce able to respond to changes, a better understanding of foreign and global markets, and a better understanding of the needs of a more diverse range of customers and clients both nationally and internationally.  

Positive action  

Positive action under the EqA 2010 enables employers to discriminate lawfully. There are two types: general positive action (section 158) and positive action in recruitment and promotion (section 159). Where persons with a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented, general positive action provisions under section 158 allow employers to take certain actions to enable or encourage those with the protected characteristic to overcome or minimise the disadvantage, meet their particular needs or encourage greater participation. Action taken by the employer must be proportionate to achieving the stated aims. Employers are not obliged to take positive action but can do so if the prescribed requirements are met. There are two qualifications to this:  

• Employers subject to the public sector equality duty have a duty to consider it. 
• Employers have a duty to make reasonable adjustments for disabled employees, which is another form of positive action. 

Positive action in recruitment and promotion under section 159 is allowed where all of the following are satisfied:  

• A is as qualified as B to be recruited or promoted. 
• The employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it. 
• Taking the action is a proportionate means of achieving a legitimate aim. 

In other words, it allows positive action in relation to a “tie-breaker”, where an employer faced with two or more candidates of equal merit, to consider whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce.  

When does it become unlawful positive discrimination?  

The “tie-breaker” element is crucial in making sure that employers are lawfully implementing positive action, as shown in Furlong v Chief Constable of Cheshire Police ET/2405577/18. Here, the employer unsuccessfully relied on positive action by giving preference to candidates with under-represented protected characteristics (such as candidates who identified as LGBT, those from BME backgrounds and women) when interview scores indicated Mr Furlong, a heterosexual white male, to have done far better than candidates from the under-represented community. The tribunal held that if the candidates were recruited solely on the basis of scores given to them, then Mr Furlong would have been recruited. 

As an example, the following positive action taken by an employer would be lawful:  

Due to people from BME backgrounds being under-represented in a company, the employer decides to use the positive action provisions to advance a candidate from a BME background to the next round of recruitment where there were multiple people of equal merit. This is lawful under the EqA 2010 and acts as a defence to a discrimination claim by those from non-BME backgrounds for not being on the short-list. 

However, where there is a candidate with better qualifications than the person with a protected characteristic, or an employer has a policy of favouring groups with certain protected characteristics, actions taken to “level the playing field” would be unlawful positive discrimination:  

• An employer offers a job to a woman as women are under-represented in the company’s workforce when there was a male candidate who was more qualified. This would be positive discrimination and is unlawful.  
• A large employer, having found that overwhelming majority of its workforce are under the age of 35, sets a quota of 50% of new recruits to be over the age of 35 regardless of whether they are of equal merit to other applicants under the age of 35. This would be positive discrimination and would therefore be unlawful.  

What evidence do employers need to support positive action?  

For positive action to be lawful, employers must reasonably think that one of the statutory conditions is met, such as disadvantage, needs or low participation. How can employers illustrate this? According to the EHRC Employment Statutory Code of Practice (EHRC Code), “some indication or evidence will be required” but “it does not, however, need to be sophisticated statistical data or research”. It may simply involve reviewing the profiles of their workforce or making enquiries with other comparable employers in the local area or sector. It may even be a decision based on qualitative evidence such as consultation with workers and trade unions. 

Although “disadvantage” is not defined in the EqA 2010 the EHRC Code states it could include “exclusion, rejection, lack of opportunity, lack of choice and barriers to accessing employment opportunities”. In terms of “needs”, they are not required to be unique to those with that characteristic but may be different “because, disproportionately, compared to the needs of other groups, they are not being met or the need is of particular importance to that group”. Low participation may or may not be disproportionate. According to the EHRC Code, “the employer will need to have some reliable indication or evidence that participation is low compared with that of other groups or compared with the level of participation that could reasonably be expected for people from that protected group”.  

New diverse working culture post-COVID-19 

For businesses to stand out and gain competitive advantage over the competition in the aftermath of COVID-19, diversity will become an even more important tool and positive action can help employers achieve the desired level of diversity. To avoid falling into the trap of unlawful positive discrimination, employers will need to consider the appropriate provisions of the EqA 2010 (whether under section 159 for recruitment and promotion, or otherwise under section 158), make sure the requirements are met in terms of identifiable evidence, and properly maintain records after the event so that decisions taken can be explained with appropriate evidence. There is another angle to the diversity debate in the form of mandatory ethnicity pay gap reporting that is currently being debated in Parliament after a petition calling for its introduction passed 100,000 signatures. If enacted, it will further focus the minds of employers on the issue of diversity.

This blog was first published by Practical Law Employment Law Blog.