BAME Livelihoods Matter – Taking Positive Action

The recent Black Lives Matter protests have rightfully brought racial inequality to the fore, leading to a renewed focus on the lack of progress of UK organisations to improve racial diversity in the workplace. The evidence is clear. BAME individuals in the UK are both less likely to participate in and then less likely to progress through the workplace when compared with white individuals. The structural bias which exists in organisations, and which favours a select group of individuals to the detriment of BAME individuals, has been exposed. Business leaders have vocalised their commitment to tackle racial inequality, pledging to set diversity targets within their organisations to improve BAME representation. The Premier League, English Football League and Professional Footballers' Association have announced a new initiative which will give six BAME coaches a 23-month work placement scheme in an effort to increase the number of BAME coaches.
 

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.

Beware of positive discrimination

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:

1. General positive action. This might include measures to increase the talent pool, such as setting targets for increased participation, targeting advertising at specific disadvantaged groups, providing bursaries, outreach work and targeted networking opportunities. General positive action can also be taken in relation to current staff and might include providing mentoring or reserving places on training courses.
2. Positive action in relation to recruitment and promotion.

These actions may be lawful provided they meet the statutory requirements set out in the EqA.

Limits to positive action

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.

Action plan

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:

1. At the outset, put in place a detailed action plan setting out the specific outcomes, possible actions, measurable indicators of progress set against a timetable, periods for review etc.
2. Avoid taking positive action that continues indefinitely. The impact of the action should be monitored and progress towards the aim kept under review, in order to assess whether it is still proportionate to continue the action.
3. Establish objective assessment criteria for selection for recruitment or promotion. This will be crucial in any tie-breaker situation and should take into account overall ability, competence and professional experience, relevant formal or academic qualifications, and any other qualities required for the specific job.
4. The use of the tiebreaker provisions is likely to be best used at the point of the recruitment process when candidates are finally selected, as this is likely to be the stage where it can be determined whether or not the candidates are truly as qualified as each other.
5. Avoid having a blanket policy of appointing or promoting candidates with a certain protected characteristic. Instead, be prepared to consider the tiebreaker provisions on a case-by-case basis.

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.

Further Information

If you have any questions or concerns regarding the topics covered in this blog, please contact Niki Southern, Clodagh Hogan or any member of the Employment Law team.

This blog was also published in PM Daily in August 2020.