What is Positive Discrimination in the UK?

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28 Aug 2020

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In today’s business and social climate, it’s important to embrace diversity to ensure your business can benefit from a wide range of global talent.

Improving diversity in your organisation has many benefits. However, you need to be wary as you could accidentally fall into the realm of positive discrimination. It can be a serious issue.

Let’s look at exactly what does positive discrimination mean, some examples of positive discrimination in the workplace and the differences between positive action and positive discrimination.

Positive Discrimination Definition

Positive discrimination is when you give preferential treatment to people with a protected characteristic rather than due to their suitability.

Positive Discrimination UK Laws

So, is positive discrimination legal? No, it is not. This is because positive discrimination is still discrimination. This applies to recruitment or promotion.

Any form of consideration an employer takes regarding protected characteristics will break the Equality Act of 2010. It is against the law to discriminate against someone because of:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

This is most commonly seen during the recruitment phase, but discrimination can affect an employee throughout all of their employment. For example, it can affect promotion decisions for existing employees.

Here are some positive discrimination examples so you can see how this applies in practice:

  • Having a quota on hiring a specific number of people based on a protected characteristic.
  • If you choose to hire a female candidate in favour of a more suitable male candidate because you worry there is a distinct lack of females in your organisation. That’s positive unless an employer can show it was a proportionate means of achieving a legitimate aim.
  • Hiring a BAME employee to fill diversity and minority group quotas over a more qualified non-BAME employee. This is positive racial discrimination.
  • Promoting an underqualified employee to a managerial position as they’re considerably younger than the rest of the managerial team. That’s positive age discrimination.

Positive Action vs Positive Discrimination

We often mix positive action and positive discrimination up, but they are different in key areas. The fundamental difference is that positive action is allowed in, so let’s look at how lawful positive action contrasts discrimination.

Positive action is about taking specific steps to improve equality. A workplace will actively encourage applicants or groups to apply for job roles.

Under the Equality Act 2010, you can take positive action to support those from under-represented groups, to help them overcome any disadvantage when competing with other applicants or applying for development and training

This differs from discrimination, where a person is employed specifically because of a protected characteristic, rather than because they’re the most qualified or equally qualified for a role. Positive action doesn’t negatively affect other groups.

How to Protect Against This

You must be mindful of the Equality Act and positive discrimination during the employment process. There are several ways you can avoid any unconscious bias people may have during the process.

  • State the skills required: Make it clear what is required and why these skills are important to the role. Make sure they are easy for people from different backgrounds to fulfil.
  • Create the job/position advert: Ensure you do not use discriminatory language when creating the advert (e.g. barmaid or handyman). Focus on skills for the job not characteristics.
  • Have anonymous CVs: This will eliminate any bias to do with protected characteristics.
  • Select a suitable range of candidates: Select candidates based on the skills outlined earlier
  • Prepare interview questions and topics: Know what questions you will ask before the interview so you do not ask any which can be perceived as discriminatory.
  • Offer jobs based on skills: When offering the job, to make the process non-discriminatory it must be due to the candidate’s skills.
  • Record the process: Record your decisions about who you hire, and your reasons. It is always useful to have these recorded.
  • Offer feedback: give clear and well-explained reasons to unsuccessful candidates as to why they weren’t selected. Ensure you base them on skills, not characteristics.

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