Levelling the playing field – using positive action to foster equity, diversity and inclusion

Improving equity, diversity and inclusion (EDI) has remained a key strategic priority for employers throughout the COVID-19 pandemic. We are seeing an increasing focus on EDI targets and policies by employers of all sizes, which often forms part of an organisation's environmental, social and governance (ESG) initiatives - with EDI issues falling squarely within the 'S' element of ESG.

The last year has seen a particular focus on race and ethnicity in light of the #BlackLivesMatter movement, with the recent Commission on Race and Ethnic Disparities report recognising racial bias at work and the TUC's recent report highlighting issues in the labour market affecting ethnic minorities. Some recent examples of EDI initiatives include Sky pledging that one in five of its staff will be from an ethnic minority background by 2025 and EY aiming for 20% of its partners to be from ethnic minorities in the same timeframe. There is also a range of new industry-wide initiatives which employers can sign up to. For example, in February this year, Twitter signed up to the Silicon Valley Leadership Group's "25x25" pledge, by committing to hire 25% of its executive positions from underrepresented groups by 2025 or to increase the number of underrepresented individuals in leadership roles by at least 25% by 2025.

Diversity targets fall within the scope of initiatives that constitute 'positive action'. Positive action measures are lawful steps that an employer can choose to take to improve EDI for a group of people who share a protected characteristic such as gender, race or disability. Such treatment will be lawful provided the employer stays within the limits for positive action set out in the Equality Act 2010, as set out below. In contrast, positive discrimination is unlawful and occurs where an employer goes further than is allowed by positive action when treating one group with a protected characteristic more favourably than another. There can be a fine line between positive action and positive discrimination, and employers need to take care to ensure they don’t stray into committing unlawful positive discrimination, even with the best of intentions.

This article highlights what we mean by positive action and sets out some important points for employers to bear in mind.

The legal position

There are two types of positive action: (1) general positive action; and (2) positive action in recruitment and promotion (the "tie breaker").

1. General positive action

An employer can take advantage of the general positive action power where it reasonably thinks that people with a particular protected characteristic are disadvantaged, have different needs or are disproportionately under-represented in an activity.

Where this is the case, the employer can take proportionate measures to enable or encourage those with the relevant characteristic to overcome or minimise that disadvantage, to meet their needs, or to enable or encourage their increased participation in that activity.

2. Positive action in recruitment and promotion (the "tie breaker")

In the specific context of recruitment and promotion, an employer can instead rely on a separate positive action power. Under this power, where an employer reasonably thinks that people with a protected characteristic are disadvantaged or are disproportionately under-represented, the employer can treat people with that particular protected characteristic more favourably than others in recruitment or promotion, as long as:

• the person with the relevant characteristic is "as qualified as" those others also being considered for promotion;
• taking the action in question is a proportionate means of achieving the legitimate aim; and
• the employer does not have a blanket policy of automatic preference for people who share the protected characteristic over people who do not.

Examples of positive action in practice

Positive action measures can take many shapes or forms. What is appropriate depends on the context. The EHRC's Employment Code of Practice contains helpful examples, including:

• targeting advertising at a specific disadvantaged group to encourage more job applications from that group;
• expressly saying in job adverts that the employer welcomes applications from an under-represented group;
• offering internships or open days exclusively to those from a disadvantaged group so that they can learn more about work opportunities with the employer;
• providing a target group that has particular needs with exclusive training opportunities, for example providing targeted IT training to those aged over 60;
• giving support and mentoring to those in a disadvantaged group, for example to a member of staff who has undergone gender reassignment; and
• setting targets for increasing participation by the under-represented group, such as the targets set by Sky and EY mentioned earlier.

Important points for employers to remember

1. Evidence of disadvantage / different needs / under-representation is required

An employer's belief only has to be reasonable. Sophisticated statistical data or research is not necessarily required. So it can be sufficient for an employer to simply review the profiles of its workforce or make enquiries of other employers in the sector.

2. The action must be a proportionate means of achieving the aim

'Proportionate' refers to the balancing of competing relevant factors. These factors will vary depending on the basis for the positive action – whether it is to overcome a disadvantage, meet different needs or address the under-representation of a particular group. Typically, relevant factors will include:

• how long the disadvantage/under-representation has lasted;
• the type of barriers experienced by the target group;
• the success or failure of other action taken to tackle those barriers;
• whether there are alternative ways to address the disadvantage/under-representation which are less likely to disadvantage other protected groups.

3. Positive action should be continually reviewed and will usually be time-limited

Whether the positive action has remedied the inequality it was put in place to address should be continually reviewed. This reduces the risk that the positive action is no longer proportionate, which can make it unlawful.

4. Taking positive action steps is voluntary, not mandatory

There is no obligation on employers to take positive action measures but as discussed, doing so can materially help an employer ensure EDI in its organisation.

5. In the context of recruitment and promotion:
   1. establish set criteria to assess and compare candidates when using the tie-breaker exception
      This can take into consideration a candidate's overall competence, ability for a job, relevant experience, qualifications and any other qualities essential for the job.
   2. do not prefer candidates from under-represented groups over other better quality candidates.
      This is important to bear in mind when working towards achieving diversity targets. Preferring individuals from your target group over better qualified candidates will be unlawful positive discrimination. Furlong v Chief Constable of Cheshire Police is an example where the employer overreached in this way. At interview their detailed scoring assessment was replaced with a simple pass/fail mechanism, which created an artificially low pass threshold. As a result, substantial numbers of candidates from under-represented groups were "deemed equal" to better quality candidates when this was plainly not the case.

The law on positive action is restrictive and often does not allow employers to go as far as they would like to when implementing measures to increase diversity. Employers should be careful to ensure that positive action programmes do not overstep the mark. That being said, when successfully adopted, positive action initiatives can be an effective means of increasing diversity. Employers should not be perturbed by the risks and should instead actively consider adopting positive action initiatives (and in doing so, carefully) as part of a wider framework of measures to increase diversity and tackle inequality in the workplace.