Supporting diversity in the workplace and creating an environment that promotes inclusion and equality is paramount for every employer, however there is the risk of falling into positive discrimination.
But what is positive discrimination? As it’s quite a complex term, this article will break down the definition and consequences of it in the workplace.
There is no legal definition of positive discrimination under the Equality Act 2010. However, it refers to the preferential treatment of people with protected characteristics, often during the recruitment or promotion process. This does not apply to strict occupational requirements.
The Equality Act defines the nine protected characteristics as:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Employing someone based on any of these protected characteristics rather than their suitability for the role is considered as unlawful discrimination under employment law.
Examples of Positive Discrimination at Work
There are many different examples of positive discrimination at work, especially during the hiring or promotion process. These specific examples include:
Positive Discrimination: Setting a quota or benchmarks to hire a specific proportion of people within a protected characteristic or minority group.
Positive Age Discrimination: Promoting an employee that is younger than the rest of the team they will be joining due to their age.
Positive Race Discrimination: During the recruitment process, favouring candidates from ethnic minorities over more qualified non-BAME candidates to increase diversity.
Positive Sex Discrimination: Promoting female employees consequently neglecting male candidates who may be more or equally qualified in order to promote equal job opportunities for women.
Positive Sexual Orientation Discrimination: Choosing to hire a homosexual candidate due to social hardships rather than a heterosexual individual and work capabilities.
Regardless of the reason, it is regarded as discriminatory to automatically treat all employees or candidates with protected characteristics more favourably and guaranteeing them positions because of this.
Is Positive Discrimination Legal UK?
Not only is it considered as discriminatory but it is also illegal in the UK under the Equality Act 2010; this is because it does not give equal treatment to all. It is only legal if it meets the statutory requirements in the Equality Act for taking positive action.
Positive Discrimination vs Positive Action
Under the Equality Act 2010, positive action refers to a range of measures that aim to eliminate discrimination, remove barriers and promote equality of opportunity for under-represented groups. Positive action does not negatively affect other groups.
Favouring a candidate with protected characteristics where two candidates are as equally as qualified as each other is an example of positive action. Another example is encouraging applicants from disadvantaged or under-represented groups to apply for a job advert.
Consequences of Positive Discrimination
There is no qualifying period of service for a person to be eligible to claim unlawful discrimination and employers may find themselves facing an employment tribunal claim. It is vital for employers to comply with the Equality Act 2010 and recognise the difference between positive discrimination and positive action. If you believe you’ve been positively discriminated at work, then we’re here to help. If you have raised an issue with your employer, but if this doesn’t progress, give our experts a call today
