Ben Stepney, partner in the Employment team recently wrote a piece for HR Magazine
It has been reported that the RAF’s head of recruitment refused to follow an order that she should prioritise women and ethnic minority candidates over white men, which she said was unlawful, and subsequently resigned.
It is reported that she objected to the order because it required her team to make offers of employment to women and ethnic minority candidates solely on the basis of their protective characteristics and in preference to others who had successfully passed the selection criteria ahead of them.
The RAF responded that the concerns raised had been addressed by her chain of command, that it recruits people from the widest possible pool of talent and takes legal advice to ensure that its recruitment process is compliant.
Here, I consider the legal aspects of the issues raised by this story and the need for employers to tread the line between lawful steps to promote a more diverse workforce and unlawful positive discrimination.
Under the Equality Act, employees and job applicants have the right not to be discriminated against on the grounds of any “protected characteristic” that they may have. The protected characteristics are age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Generally speaking, an employer must not treat someone less favourably because of a protected characteristic. But an employer must not treat someone more favourably because of a protected characteristic either, which would be positive discrimination and is unlawful in UK law. It would be unlawful, for example, to set quotas to recruit or promote a specific proportion of people with a particular protected characteristic.
There are some limited exceptions to the prohibition on positive discrimination. For example, in relation to those with a disability, where employers have a duty to make reasonable adjustments to help overcome disadvantage suffered as a result of disability. Or occupational requirements, such as at a women’s refuge where employees must be female due to the sensitive nature of the establishment.
In contract, positive action is permitted in UK law. This allows employers to take action where persons who share a protected characteristic suffer a disadvantage or are disproportionately under-represented. Employers can take certain action to enable those with the protected characteristic to overcome the disadvantage, without facing discrimination claims brought by people who do not hold the relevant protected characteristic.
Such positive action must be proportionate and reasonable. The Equality and Human Rights Commission (EHRC) Code provides some examples of positive action:
• Reserving places on training courses for people with the protected characteristic
• Providing support and mentoring
• Creating a support group for members of staff who share a protected characteristic or who may have workplace experiences or needs that are different from those who do not share that characteristic.
There is a fine line between unlawful positive discrimination and lawful positive action. Aside from the legal risks, adopting positive discrimination in the workplace risks undermining morale amongst employees if it is seen that decisions about promotion and recruitment are being taken based on protected characteristics rather than skills and experience.
Businesses would do well to keep their recruitment and retention processes under review. Such processes should promote equal opportunities but must be careful not to stray into positive discrimination. The RAF head of recruitment considered that her employer had got this balance wrong. Hopefully for all involved that matter can be resolved without recourse to litigation.