Black Livelihoods Matter – Getting your recruitment right
Employers who want to make a meaningful effort to tackle these barriers would be well advised to start at the very beginning, by thinking creatively about how they can attract a diverse pool of talent and examining their recruitment processes. As part of our Black Lives Matter blog series, Catherine Bourne and Özlem Mehmet gave their ideas on the types of positive action employers can take at the recruitment stage to encourage greater participation from BAME individuals. Before taking positive action employers need to be aware of the strict parameters of the Equality Act 2010 (“EqA”), to ensure that they don’t inadvertently fall foul of UK discrimination law.
Whilst positive action is generally voluntary, some public authority employers may have a duty to consider taking positive action as part of fulfilment of their public sector equality duty.
Positive action is not to be confused with positive discrimination. Positive discrimination is the practice of treating one person more favourably than another because they have a protected characteristic. Race is a protected characteristic and includes colour, nationality, ethnic or national origins. If an employer were to offer employment to a candidate purely on the basis of their race, this would be positive discrimination. This is generally unlawful, unless one of the statutory occupational requirements applies (for example, that having regard to the nature or context of the work, being of a particular race is an occupational requirement). Setting a quota to recruit a specific number of people from a BAME background would also be positive discrimination and unlawful.
Positive action refers to measures an employer may take to help alleviate disadvantage experienced in the labour market by groups sharing a protected characteristic, to increase their participation in the workforce where this is disproportionately low, or to meet their particular needs relating to employment.
There are two types of positive action:
These actions may be lawful provided they meet the statutory requirements set out in the EqA.
While it is commendable that employers are showing a renewed enthusiasm for taking positive action, they need to be aware of its limits. Certain circumstances must exist in order for the positive action to be lawful.
The employer must reasonably think that either people who share a protected characteristic suffer a disadvantage connected to the characteristic; or have needs that are different from the needs of persons who do not share it; or that participation in an activity by people who share a protected characteristic is disproportionately low. In order to demonstrate this, the employer needs to gather some reliable form of information or evidence.
Once this threshold has been met, the employer needs to assess whether the positive action envisaged is a proportionate means of achieving its aim of remedying disadvantage, meeting needs or encouraging participation.
The conditions for positive action in recruitment and promotion are even stricter, which limits its potential use. Positive action in these circumstances can only be used in a “tie-breaker” scenario, i.e. where an employer is deciding between two or more candidates for recruitment or promotion and the candidates are of equal merit. In this scenario the employer may take into consideration whether one of the candidates is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce. Again, the employer will need reliable information or evidence to back this up and make an assessment as to the proportionality of the measure. In addition, the employer faces the task of assessing whether the person with the protected characteristic, who they wish to treat more favourably, than another candidate is just as qualified to be recruited or promoted as the other candidate. In practice, this may be a difficult task. The risk of getting this wrong is that a person who does not hold the relevant protected characteristic may bring and win a discrimination claim, as was seen last year in the well-publicised Employment Tribunal case of Furlong v Chief Constable of Cheshire Police. In this case, the employment tribunal was critical of the approach of the Respondent in various ways including commenting that it should have waited longer to assess the outcome of earlier diversity and inclusion programmes before embarking on a radical programme of offering posts to all black, female, LGBTQ+ or disabled candidates who passed the selection process.
It is clear that employers face some hurdles before they can begin to implement positive action. Nevertheless, now seems like the perfect time for employers to build on the momentum of the Black Lives Matter movement to implement the structural changes that are needed to create a truly inclusive workforce. Employers can benefit from the wealth of research available online evidencing the disadvantages suffered by BAME individuals in the workforce in order to demonstrate the justification for positive action. With careful planning and consideration, most employers should be able to meet the legal thresholds for lawful positive action. Here are some of our tips to employers to put them in the best position to do so:
Given the progress that we need to see in this area, the law is perhaps disappointingly restrictive in terms of action that can be taken. How best to improve the number of women in organisations, and, in particular in the top decision making positions, has been the subject of a great deal of debate for many years. It is, without a doubt, time for that discussion to encompass increasing the proportion of people from BAME backgrounds.
This blog was also published in PM Daily in August 2020.
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