Positive discrimination and positive action
By Diane Gilhooley
As a general rule, “positive discrimination” is prohibited in employment. In contrast, “positive action” is permitted and may even be required in certain circumstances. In this article, we consider what these two concepts mean and the important differences between them. We also look at a potentially significant proposed change in the law in this area.
Positive discrimination means treating one person more favourably than another on the ground of that individual’s sex, race, age, marital status or sexual orientation. While, in this situation, the individual’s characteristic is being taken into account to benefit that individual, typically because that individual belongs to a group that is often treated unfairly or under-represented in the workforce, this is nevertheless unlawful discrimination. An exception to this principle is in the context of disability discrimination where it is permissible and, in some circumstances even necessary, to treat disabled employees more favourably than non-disabled staff. Another exception is where positive discrimination can be justified as a “genuine occupational requirement” or “qualification”.
Genuine occupational requirements
Under discrimination legislation relating to sex, race, religion or belief, age and sexual orientation, an employer can discriminate in recruitment, transfers, training or dismissal if the employer is able to prove that a genuine occupational requirement (“GOR”) or, in the case of sex or race, genuine occupational qualification (“GOQ”) exists. This limited defence applies where the nature of the role makes it unsuitable for individuals with particular characteristics. For example, the GOQ defence may be available where the essential nature of a job requires that it be carried out by a person of a particular sex – for example, a male role in a theatrical production. The defence may also be available where, for example, a role involves physical contact with another individual and issues of decency or privacy may arise. Similarly under the Race Relations Act, an employer may be able to justify employing only individuals of a particular racial background for the purposes of “authenticity” in a particular setting, such as a restaurant or in an acting role.
However, there are very strict conditions that must be met in relation to this defence, and the burden is placed on the employer to prove that those conditions have been satisfied. The discriminatory characteristic must be a genuine and determining requirement of the job; it must be proportionate to apply that requirement in the particular case, and either the prospective employee must not meet the requirement or the employer must be satisfied that the person does not meet it.
In contrast to positive discrimination, limited forms of “positive action” are permitted under all strands of the discrimination legislation. So, employers are allowed to offer disadvantaged groups access to facilities for training and to encourage job applications from under-represented groups. However, they are not permitted to discriminate in the selection of candidates for employment or promotion or the terms and conditions on which they are employed. The Advisory, Conciliation and Arbitration Service (Acas) provides examples of permitted positive action, including placing advertisements where they are more likely to be seen by the members of a disadvantaged group or “providing computer training courses to those over 60 because they may have had less exposure to training in the past”. Employers must also ensure that before committing to positive action they have evidence to show that the targeted group is under-represented within the workforce or is likely to have a particular disadvantage in taking up or doing that type of work.
In addition, for public-sector employers there are now much broader positive duties under sex, race and disability discrimination legislation.
A change in the law?
We reported in July that the Equality Bill, which proposes a number of changes to discrimination law, has been presented to Parliament. One proposed change is the introduction of the right for employers to take positive action when selecting between two equally qualified candidates. This would permit employers to base their recruitment decisions on, for example, sex or ethnicity where there is under-representation in the workforce of that particular group and they are faced with two or more equally suitable candidates for an available role. While this would represent a significant departure from the current legal position, the Government has made clear that it is not intended to allow automatic selection of under-represented groups and that “selection on merit” will remain the overriding principle.
Diane Gilhooley is HR expert in the education team at Eversheds.