What is Positive Discrimination?

Every employer must aim to create a workplace that promotes inclusion, equality, and diversity.

But it doesn't mean they should do this in an unlawful and unethical manner. That’s when positive discrimination occurs.

Employers might have good intentions, but it's still against the law. If you're guilty of unlawful discrimination, you could end up facing tribunal claims, compensation penalties, and reputational damage.

In this guide, we'll look at what positive discrimination is, what the law covers, and how to avoid it within your workforce.

What is positive discrimination?

Positive discrimination is when you give someone preferential treatment because they have a protected characteristic.

It's often seen during recruitment or promotional situations. For example, an employer decides to hire more candidates from ethnic minority groups because it'll boost equality and diversity.

Whilst this might seem like a good deed, it comes with certain legal circumstances. Hiring candidates solely based on protected characteristic counts as discrimination. And it's also unlawful to discriminate against other applicants who are of equal merit.

When it comes to your workforce, you should make decisions based on performance, capability, and skills. Everything else should come second to this.

Is positive discrimination legal?

Under employment law, positive discrimination is illegal in the UK.

An employer cannot give preferential treatment to a person because they have protected characteristics of a minority group.

For example, two candidates apply for the same job role. The employer chooses the male candidate as they want to boost their male employee rates.

It counts as positive discrimination because the male candidate is significantly less qualified compared to the female one.

The Equality Act (2010) outlines legal guidelines on discrimination. The act states you cannot discriminate against someone based on nine protected characteristics:

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

When is positive discrimination legal?

As stated, positive discrimination is generally prohibited. But there are certain circumstances where it can class as legal.

In simple terms, an employer discriminates against someone due to a good reason. For example, a domestic violence shelter for women only accepts female job applicants. Due to specific needs for the job, their hiring form is legally acceptable.

However, only legal courts can pass discriminative acts as being objectively justified. If you action these yourself, you could face potential discrimination claims in the future.

What are the advantages of positive discrimination?

Despite it being 'unlawful', many businesses still believe in the benefits of positive discrimination.

They think it's a great way to recruit and retain talented candidates from an under-represented group. Over time, businesses can build a diverse workplace which adds to ethnic minority numbers, especially if they're disproportionately low.

There is a lawful alternative to positive discrimination. Positive action is when you recruit or promote a person (who has a particular protected characteristic) but they're equally qualified as other candidates.

What are the disadvantages of positive discrimination?

Whilst many employers use positive discrimination with good intentions, there are several disadvantages to it.

Any employer who practises positive discrimination it could be in breach of statutory rights. Candidates could decide to raise unlawful positive discrimination claims to tribunals. If they're upheld, they could face paying compensation penalties.

Another disadvantage you could face is ruining work relations. Bias or preferential treatment often leads to friction and hostility at work. It decreases motivation, engagement, and performance. In the end, some employees may even decide to resign.

It's also dangerous to hire under-qualified employees, especially in high-risk jobs. Diversity rates aside - if a candidate lacks the capability or experience for a job, they could face increased injuries and accidents. For example, physical or mental injuries.

A disadvantage for your organisation is lower quality and quantity of work. If you hire an under-qualified candidate (simply because of a protected characteristic), it'll significantly impact your resources, revenue, and production.

What are examples of positive discrimination?

It's not always clear what actually counts as positive discrimination. And it's can even more difficult to avoid during daily work life.

To gain a better understanding, let's look at some positive discrimination examples:

Positive race discrimination

A recruitment manager decides to hire more candidates from ethnic minority groups. They start setting quotas to hit a specific number in the next few months.

The employer has good intentions to create a more diverse workplace. But they end up neglecting suitably qualified candidates who don't fall into minority groups.

Positive sex discrimination

An employer only promotes female executive managers. They believe it promotes equal job opportunities for women.

The employer believes their method showcases inclusivity. But they're directly neglecting male candidates who is more qualified (not of equal merit). This is a clear example of why a person's sex shouldn't influence organisational decisions.

Positive sexual orientation discrimination

A HR manager interviews two candidates; one is heterosexual, and the other candidate is homosexual. The manager hires the homosexual candidate because they believe this minority group has faced too many social hardships.

Not only did the manager hire the candidate based on personal reasons, they neglected the work capabilities of the heterosexual person.

Positive disability discrimination

A construction manager decides to hire more workers with disabilities. They believe it'll help them grow independence - in both their personal and professional life.

To some, this might look like a positive way to resolve social issues. But you cannot afford to ignore capability skills when it comes to workers with a disability. Especially if they face a higher disadvantage (like health and safety risks) compared to others.

Bear in mind, you have a legal duty to provide reasonable adjustments to employees with disabilities.

What is the difference between positive discrimination and positive action?

Some businesses confuse the two terms 'positive discrimination' and 'positive action'.

Positive action is about taking specific measures to improve equality in the workplace. You might hire or promote someone to remove barriers that minority groups face. The difference with positive action is the candidate is already equally qualified for the role.

Whilst discrimination is unlawful, positive action is legal in certain criteria. For example, the candidate must:

• Be of equal merit compared to the next best candidate.
• Own a protected characteristic that's under-represented within the workforce.
• Own any other protected characteristics that may disadvantage them.
• Not belong to a protected characteristic group that's favoured by the employer.

It's best to utilise positive action instead of positive discrimination. That way, you can grow equality and diversity in the most ethical manner.

What does the Equality Act say about taking positive action?

The Equality Act 2010 is considered as the main legislation when it comes to anti-discrimination law in the UK.

It's designed to help employers assist and encourage candidates from under-represented groups. By such measures, this accounts to examples of positive action - not discrimination.

Positive action provides lawful, equal opportunities for these particular groups. You simply need to prove the candidate is equally qualified for a role in comparison to other applicants.

Read our article: Equality in the Workplace: Employer Responsibilities

How to prevent positive discrimination in the workplace

Even if you're aware of what positive discrimination is, it's hard to completely avoid it at work.

It's commendable to champion an under-represented group, or be inclusive of employees with a protected characteristic. Employers just need to do it in a legal and ethical manner.

Let's look at ways to prevent positive discrimination in the workplace:

Create a positive action plan

As mentioned, it's a good idea to promote diversity and equality in the workplace. The best way to do this is by creating a positive action plan.

Your positive action plan should be based on under-representation found in your organisation. You should collect sufficient data showing where these gaps are.

From here, you'll be able to formulate a positive action plan that will promote fair opportunities to all. Let's take a look at positive action examples:

Job adverts: When you post a job advert, include positive action statements. This will attract talented applicants from ethnic minorities or protected groups. For example, you can add, 'we welcome foreign candidates' to include non-national people.

Job fairs: Attending job fairs is a great way to get direct exposure to protected characteristic groups. Make sure you visit different areas of affluence and demographics. This will help with hiring candidates with diverse experiences.

Training: You need to provide recruitment teams with inclusivity training courses. This will ensure they take a positive action approach towards hiring people from protected groups.

Add the term to your anti-discrimination policy

Most businesses will have a policy on anti-discrimination rules. This policy will highlight what unlawful discrimination is, as well as protection rights employees are entitled to.

Employers should add a section on positive discrimination into the policy. It should state that it's illegal under employment law; and that it's unacceptable within your organisation.

Highlight that there's no correlation when it comes to battling under-representation. This counts as positive action which is championed instead.

Follow a fair recruitment process

It's vital for your hiring team to follow a fair recruitment process.

They should know how to hire employees in a fair and legal way. Make sure your job adverts and specs reach out to candidates from all walks of life.

For example, advertising a job that is open to candidates of all working ages. During your hiring process, only judge them on skills, capability, and experience.

Provide equality training

It's important to build a workplace where staff feel equal and included. The best way to do this is by providing managers with equality training.

Offering equality training helps safeguard employees who are part of under-represented groups. This applies to both new and existing employees.

For example, offer flexible working to employees who have just returned from maternity leave. This will help them transition into work life in a stress-free manner. In the end, employees will value your support and understanding.

Practise anonymous decision-making

Some businesses practise anonymous decision-making when it comes to their workforce. Meaning, they won't look at what kind of protected characteristic a candidate has before hiring them.

For example, ask HR managers to provide anonymous CVs without protected characteristics, like age, sex, or racial background. Some anonymous CVs will even exclude names or educational backgrounds.

This form of unbiased decision-making helps you hire people based on suitability and skills. It doesn't consider a protected characteristic group unless it's done in an ethical way; i.e., through positive action.

Expert advice on reducing positive discrimination with Health Assured

Every employer will do what's best for their staff and the business. But when their good deeds breach the laws, their efforts become futile.

Avoid illegal discrimination and utilise positive action instead. If you don't, you could end up facing unlawful discrimination claims, compensation penalties, and reputational damage.