27 Nov 2020
Diversity in the workplace can determine the success of your business. Many studies have shown that inclusive businesses have higher morale and access to a wider skill-base.
Recruiting to increase diversity is a fantastic goal, however, be wary that you don’t fall foul of the law. Sometimes, your actions may be positive discrimination, which is unlawful.
In this article, we’ll define positive action. We’ll explore how you can manage it within your workplace without straying into discrimination.
What is positive action?
This is the act of encouraging people with protected characteristics to apply for roles. HR and recruitment aim to minimise any disadvantages in the recruitment process they may face and meet the different needs of the protected group.
They do this by making reasonable adjustments, providing training, or any other measures to encourage diverse recruitment or career progression.
We’ll look at some specific examples of this later in the article. If you’re looking for a more technical approach, we’ve also got the legal positive action definition:
“Positive action permits an employer to take a protected characteristic into consideration when deciding whom to recruit or promote, where people having the protected characteristic are at a disadvantage. This can be done only where the candidates are as qualified as each other.
The section does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances. Any action taken must be a proportionate means of addressing such disadvantage.”
Positive action - examples
So, let’s look at positive action in action.
Below are five examples of employers using positive action to support individuals:
- Including a statement in a job advert that specifically targets an under-represented group
- Favouring one candidate over another when both are equally qualified. At the end of the recruitment process, one candidate from an under-represented group is positive action.
- Offering training, shadowing or mentoring to a group with particular needs to make the role more accessible
- Hosting open days targeting under-represented groups to encourage applications and show an inclusive work environment
- Offering development programs that are only open to under-represented groups to encourage diversity in higher-level roles
Positive action vs positive discrimination
An employer can take positive action in the workplace as it is legal under the Equality Act 2010. However, it is easy for your good intentions to slip into discrimination.
It becomes discrimination when someone is receiving preferential treatment because of their protected characteristic.
To show this, we’ll look at the previous examples, and show how a slight tweak could make them discriminatory.
- Including a statement in a job advert that states only individuals from an under-represented group can apply
- Favouring one candidate from an under-represented group, over another, despite the other candidate being more qualified for the role
- Offering training, shadowing, or mentoring to a group with particular needs and refusing additional training when requested by others
- Hosting open days only for under-represented groups with the guarantee of employment to attendees
- Offering development programs that result in promotions to one under-represented group without offering development programs to others.
Positive action – employment law
So, what are the main things you need to consider when pursuing positive action in the workplace?
We’ve highlighted the main issue: discrimination.
Be sure to review any action you to take and assess whether it puts another group at a disadvantage. If you’re unsure, seek independent legal advice on the matter.
Determining what is and isn’t discrimination isn’t always clear. Ensure that when using positive action in recruitment, don’t allow it to become discrimination. For guidance on creating a diverse workforce—legally—speak to a Croner expert today on 0145 585 8132
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