It's legal in America. It is very rarely legal here. Thenbelownis long but it describes the differences between positive action (legal in the UK) and positive discrimination (not legal). E.g. positive action to make a workplace more accessible to wheelchairs and advertise that you are happy to hire disabled people and have policies in place to help them is legal. Hiring a less qualified disabled person over a more qualified abled person is discrimination and illegal. The bit in bold is maybe the most relevant.
5. What is the difference between positive action and positive discrimination?
Positive action is not positive discrimination. Positive discrimination is unlawful in Great Britain. If an action treating a particular group more favourably does not meet the statutory requirements in the Act for taking positive action, then it is likely to be unlawful direct discrimination under the Act, irrespective of the motives behind taking it. Some people may refer to this type of unlawful preferential treatment as ‘positive discrimination’. However, it is not unlawful for an employer to treat a disabled person more favourably in comparison to a non-disabled person.
Some examples of initiatives that would probably constitute unlawful discrimination are:
- recruiting or promoting a person solely because they have a relevant protected characteristic (without regard to the legal criteria)
- setting quotas (as opposed to targets) to recruit or promote a particular number or proportion of people with protected characteristics irrespective of merit
- requiring that places for those with particular protected characteristics are reserved on interview panels, irrespective of whether there are more suitable candidates excluded who do not have that particular characteristic
- creating schemes to benefit those with a particular protected characteristic, without any evidence that the group in question is at a disadvantage or has different needs
Positive discrimination may also occur where a disadvantaged or underrepresented group that shares a protected characteristic is treated preferentially (but not in accordance with the legal criteria or existing exemptions) to address inequality.
Positive action should not be confused with ‘affirmative’ action, which was first introduced in the USA and has since been adopted in some other countries.
Although the general aims to promote greater equality of opportunity are similar, affirmative action can be more prescriptive than positive action and often involves the use of quotas to reduce the underrepresentation of some groups. For example, this could involve setting quotas to interview a minimum number of people from underrepresented groups for certain roles. As above, introducing such quotas could constitute positive discrimination as they are mandatory and employers may need to put forward less qualified candidates for hiring or promotion opportunities to meet any minimum restrictions. Targets differ from quotas as they are not mandatory and can be used to make improvements without compromising the ability for employers to put forward the best candidates for roles. When considering taking positive action, you should be careful not to use American resources about affirmative action, as they do not set out the legal position in this country.
To avoid positive discrimination, an employer should follow the steps set out in this guidance. In particular, an employer must reasonably think that one of the 3 conditions – disadvantage, different needs, or disproportionately low participation – applies to the particular group before taking measures targeting it.
An example of positive discrimination is the case of Furlong v Chief Constable of Cheshire Police. Cheshire Police operated a policy of treating all candidates who passed the recruitment tests (regardless of score) as being equally qualified for the job. Ethnic minority candidates were then prioritised for selection. The Employment Tribunal found that Cheshire Police Service directly discriminated on grounds of sex, race and sexual orientation against Mr Furlong, who was a white, heterosexual male.
The Tribunal found that while there was evidence that ethnic minority groups were underrepresented within the force, reliance on section 159 of the Act failed because the prioritised candidates were not as well qualified as Mr Furlong. The tribunal therefore found that the action taken by the police force was unlawful because the test in section 159(4) was not met. First, the police force had set an artificially low threshold in their recruitment tests and it was wrong that all 127 candidates were equally suitable for the job. Second, the tribunal found that the police force’s recruitment approach of prioritising ethnic minority candidates had the hallmarks of being a policy. And third, although the police force had a legitimate aim to improve ethnic diversity in its force, the tribunal held that the blanket approach to positive action in recruitment was not reasonably necessary or a proportionate means of achieving that legitimate aim. More information on positive action in recruitment is available in later sections of this guidance.