Positive action not positive discrimination
It is important to note the distinction between positive action and positive discrimination. Positive discrimination involves treating one person more favourably than another because they have a protected characteristic. While, as we later explain, it is permitted (and in fact required) in relation to certain protected characteristics but not for others.
The current law
The ‘positive action’ provisions are found at ss.158 and 159 of the Equality Act 2010. Employers can use these in two situations, namely: general encouragement and training (s.158) and recruitment and promotion (s.159). Both are voluntary and targeted measures which an employer may take to address underrepresentation or disadvantage experienced by people with protected characteristics. So how do these provisions currently work?
Section 158: general encouragement and training
This applies where an employer reasonably thinks that persons who share a protected characteristic (a) suffer a disadvantage connected to their characteristic (including legal, social or economic barriers to accessing employment opportunities); (b) have particular needs from others who do not share the same protected characteristic; or (c) their participation in an activity is disproportionately low. If any of these apply, then an employer is permitted to undertake proportionate positive action to achieve the stated aim of meeting the relevant needs, reducing the disadvantage or increase participation.
Section 159: recruitment and promotion (tiebreaker situation)
This allows positive action in recruitment and promotion decisions in very limited circumstances. Where an employer reasonably thinks that: (a) persons who share a protected characteristic suffer a disadvantage; or (b) participation in an activity by persons who share a protected characteristic is disproportionately low, then when there is a deadlock between candidates, of equal merit, it enables employers to give preferential treatment to the candidate from an underrepresented group, ie a tie-breaker.
The limits of existing law
Unfortunately, employers face real challenges when trying to use the existing law to take positive action. This is because, in some respects, the law is so narrowly drafted as to be impractical in reality or is, in some places, otherwise unclear.
Tie-breaker situation
Let’s take s.159, the tiebreaker provisions, for example. Although this provision appears helpful on the face of it, many employers are reluctant to rely on it in practice for fear of getting it wrong which could result in challenges against its use.
This was the case in the employment tribunal decision, Furlong. The claimant, a white, heterosexual man, applied for the position of police constable with Cheshire Police and was shortlisted. He attended and passed the assessment centre and interview stages; however, he was informed that his application was being put on hold as there were not enough vacancies for all candidates who had passed at that stage.
Cheshire Police stated that it had applied positive action measures in accordance with s.159, whereas Mr Furlong argued that the police force had acted unlawfully as the candidates with protected characteristics were not ‘as qualified’ as him and the police had applied an automatic preference to candidates with protected characteristics. The tribunal agreed with Mr Furlong and upheld his claims, holding that the positive action programme they had implemented exceeded the scope of the tie-breaker provision. While Cheshire Police provided evidence that the number of employees in the police force with protected characteristics was disproportionately low, it was clear on an objective assessment of the evidence and the qualitative assessment data that the candidates were not equally suitable for appointment.
Furlong highlights the difficulties employers face when seeking to apply the existing positive action legislation and hence, its effectiveness and limited use in practice. A key concern for employers, is whether any two (or more) candidates can ever be said to exactly equal (especially when recruiting at a more senior level) which brings into question the scope of the tie-breaker provision.
Shortlisting
One step employers might consider taking is shortlist quotas; for example, reserving 50% of places on shortlists for women to ensure they have a balanced slate of candidates to select from. Provided they act proportionately and still ensure they select candidates based on merit, this might seem to be a relatively benign step. Unfortunately, it is unclear whether this is lawful or not.
A Government Equalities Office report, ‘Reducing the gender pay gap and improving gender equality in organisations: Evidence-based actions for employers’, referred to the inclusion of women in shortlists as an ‘effective action’, but the EHRC has made clear that this must not be done, clearly stating so in its guide to increasing diversity in the television and broadcasting industry:
‘Under British law, places cannot be reserved on shortlists or guaranteed interviews offered to some people from certain protected groups (sometimes called the “Rooney Rule” after the scheme running in the US), as this would unlawfully discriminate against others (unless the recruitment relates to a disabled person.’
This has left employers unclear as to whether they can take such a step. We contend that this lack of clarity unfairly ties the hands of employers who want to take positive action.
Discrimination is permitted in other areas
Although we may instinctively feel that positive discrimination is always a negative thing, the law does currently permit positive discrimination in some other areas. In fact, in some areas it requires employers to do so; for example:
- Maternity – the law requires that women on maternity leave must be given priority for suitable vacancies where there is a redundancy situation (Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312)); and
- Reasonable adjustments – in the House of Lords decision Archibald, it was established that the duty to make reasonable adjustments, which only applies in disability discrimination cases, when engaged necessarily entails some degree for positive discrimination by employers as they are required to take positive steps that they would not take for others. In some circumstances, that might involve the employer transferring a disabled employee into a vacant post which might be at a slightly higher grade provided the employee was qualified and suitable for the job.
Furthermore, under the Government’s disability confident scheme employers commit to offering interviews to disabled applicants who meet the minimum criteria for a job.
The case for reform
The Government promised to circulate guidance to help employers understand and use positive action by December 2022, but this has not yet happened. Once produced, it may well provide some clarity for employers. However, we contend that s.159 is too narrowly drafted to enable employers to have confidence in using it without the fear of proceedings being brought against them.
Furthermore, there is arguably a clear need to overhaul the existing ‘positive action’ provisions, which are proving to be ineffective with employers. A more radical move would be to introduce legislation in relation to under-represented protected characteristics. This would reflect the Disability Confident employer scheme, which was launched in 2016, by the Department of Work and Pensions.
KEY
Furlong v Chief Constable of Cheshire Police ET 2405577/2018
