22nd September 2023
“Positive action in recruitment allows businesses to take reasonable steps to improve equality within their business. However, positive action is nuanced and discrimination claims can flow from getting it wrong. The internal investigation at the Royal Air Force is a recent example which shows the importance of understanding where the line between positive action and unlawful discrimination lies.”
The Royal Air Force recently conducted an internal investigation in which it uncovered systemic ‘positive’ discrimination. In mistakenly believing it was pushing the boundaries of ‘positive action’ – which is lawful in the UK – the RAF was in fact acting unlawfully.
Positive discrimination does not exist as a matter of law, but neatly describes a certain type of unlawful discrimination, whereby an underrepresented group is treated more favourably than others. In most cases, as here, the group treated less favourably is white men (as the overrepresented ethnic background and sex in most workforces and sectors).
The debate over the unlawfulness of ‘positive’ discrimination is long-running and some have advocated a change in the law to allow positive discrimination in favour of ethnic minority recruitment (for example, The Chief Constable of West Yorkshire Police).
Further, it is perfectly permissible to treat disabled individuals more favourably than non-disabled individuals – for example, you could quite legitimately have a policy of only recruiting disabled employees.
Disability aside, UK law provides for a modest form of action to combat the disadvantage and underrepresentation of people who share a protected characteristic: ‘positive action’. This article looks at what it is and lessons we can take from well-intentioned employers who have got it wrong.
Split into two powers – a general power and a power related specifically to recruitment and promotion – positive action allows employers to take steps to improve equality within their business where they reasonably think certain issues exist, provided it is a proportionate means of tackling those issues. In the context of recruitment and promotion, the two primary issues/aims are to enable or encourage members of a group that shares a protected characteristic to tackle a disadvantage connected to that protected characteristic or participate in a particular activity in which they are underrepresented.
In the context of recruitment (and promotion), there are two further conditions to comply with:
It is perhaps for these reasons – plus the fact that discrimination claims bring with them the risk of uncapped liability and potential for media backlash – that there may be a reluctance to utilise positive action in the recruitment context.
But is positive action really the poisoned chalice it is made out to be? With customers and clients increasingly wanting to see businesses meaningfully engaging with EDI – and some now requesting employee data as part of tender processes – employers shouldn’t dismiss the most direct tool to help improve equality within its workforce too quickly. Through examining both the RAF investigation and the first tribunal case on positive action, it will become clear that knowing the bounds of positive action and implementing a robust procedure will go a long way to harness this largely untapped resource.
Put simply, the RAF recruited women and ethnic minority applicants without grappling with the ‘as qualified as’ criterion. By the same token, they had a policy of automatically favouring women and ethnic minority applicants over white men.
Annual ‘levels of ambition’ were set over a ten-year period for desired percentages of women and ethnic minority recruits, as well as percentages in the workforce more generally. The levels of ambition were set on the basis that, ‘Defence is neither sufficiently diverse nor as inclusive as it needs to be’.
While clearly laudable, it quickly became apparent that these ambitions were in fact quotas. The first wrong turn was incorporating these supposed ambitions into individual and team objectives. No one wants to underperform. Clearly, if their performance is graded on hitting such targets, they are more likely to recruit in an unmeritocratic fashion in order to do so.
The second and more blatant wrong turn was that when it became apparent that targets would not be met, women and ethnic minority recruits intended to commence employment in a future year were being pulled forward in order to meet the current year target. This is unlawful discrimination – the RAF investigation concluded that 31 white men had lost out on certain payments (i.e., were treated less favourably) as result of the policy.
In 2019, in the first tribunal case on positive action, Furlong, a white male, made it through to the final-stage interview for police officers in the Cheshire Constabulary. He was informed that he had ‘passed’ the interview but there weren’t enough vacancies in the relevant intake for him.
The Constabulary had made one fundamental (and unlawful) change to its interview process, with a view to increasing its number of female, ethnic minority, LGBT and disabled police officers. Interviewees would no longer be scored and ranked based on interview performance. Instead, they simply passed or failed against a set of criteria.
Of the 182 interviewees, 127 ‘passed’ the interview stage and were ‘deemed equal’. Positive action was then used to give preference to individuals with the identified protected characteristics.
The tribunal concluded that the Constabulary had used an artificially low threshold to assess the candidates in order to engage positive action. Not only did the Constabulary clearly not view the candidates as equal (some candidates were flagged as ‘borderline’ passes, while others were highly praised), it was also conceptually difficult to see how 127 applicants could be considered ‘as qualified as’ each other for the role. They had been deemed equal in order to invoke positive action.
It was also found that the Constabulary was already taking various other measures which appeared to be working, including targeted advertising and recruitment fairs and an insight programme and ‘buddy’ scheme intended to aid applications from underrepresented groups. It was not possible to determine whether use of the tie-breaker was proportionate without allowing time for those measures to take effect and to analyse the results.
It is clear from both cases that there was a misunderstanding as to the scope of positive action. Both employers appeared to be blinded by the end goal rather than what is actually permissible under the Equality Act.
If you want to take positive action, some key rules of thumb:
Positive action is something employers often shy away from due to the complexity of the law involved and the risks of getting it wrong. However, there are countless studies that show the wide-ranging benefits of greater diversity in the workforce. Given positive action is (at present) the most direct way to increase diversity in the workforce, it is worth understanding its outer bounds. If you have any questions or want to explore positive action further, please contact Charlotte Smith or Adam Melling.
 Opinion of Advocate General Saggio in Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Case C-407/98, at