Diversity and recruitment in football

2nd June 2021

In October last year, the FA launched its voluntary Football Leadership Diversity Code (the Code) to drive diversity and inclusion across English football.

At the time of writing, 51 clubs had signed up to the Code.  While some clubs have already started putting the Code into practice, for many, the 2021/22 season will be their first season for compliance.  In seeking to comply, clubs must be careful to ensure their recruitment practices do not infringe equality legislation.

The Code – a general overview

• Broadly speaking, the Code looks to increase the number of coaches, senior leadership and full-time support staff (doctors, physiotherapists etc.) who are black, Asian or of mixed heritage, to reflect the ethnic diversity of players in English football.
• Clubs in the women’s game also commit to at least 50% of newly hired coaches being women.
• Additionally, clubs must interview at least one male and one female black, Asian or mixed-heritage candidate who meets the job description for any particular role.

Positive action in recruitment and promotion

Positive discrimination

• Under the Equality Act 2010, it is generally unlawful to “positively discriminate” – i.e., to treat a person more favourably than another because they have a protected characteristic.
• The legislation prohibits clubs from discriminating against a job applicant by not offering them the job simply because they do not possess the relevant under-represented protected characteristic.
• Similarly, the arrangements a club makes in the recruitment process should not simply favour people with a particular protected characteristic – for example, by always offering an interview to candidates from black and minority ethnic backgrounds, regardless of whether they meet the criteria for the role.
• Clubs must therefore ensure they do not impose blanket policies to that effect, either explicitly or implicitly.

Positive action

• However, where a club reasonably thinks that persons with a particular protected characteristic (such as their race) are disadvantaged or disproportionately under-represented (as The FA has identified by producing the Code), it can take “positive action”.
• Positive action enables a club to treat a person with a protected characteristic more favourably than others in the process provided that:
  • the person with the relevant characteristic is “as qualified” as other applicants; and
  • it is a proportionate means of overcoming or reducing the disadvantage.
• In other words, positive action should effectively only be used in a “tie-breaker” scenario.

Practical advice

• Increasing diversity and inclusion in football is of central importance.
• Clubs should remain mindful of the risk of discrimination in their recruitment processes.
• Given the ability to take “positive action”, the focus for clubs should be on attracting the best applicants to apply for the roles.
• To this end, clubs should ask themselves the following questions:
  • Do we convey an inclusive culture?
  • Is equality and diversity championed at the very top of the club?
  • Is equality and diversity celebrated?
  • Is diversity seen as a key to further success?
  • Can we invest in the local area – creating programmes, internships etc., for young coaches from disadvantaged backgrounds?
• Clubs should avoid seeing the Code’s percentage targets as immovable quotas. While clubs should seek to meet the relevant percentages in each role, the Code recognises that sometimes this will not be possible.
• Where a club fails to meet any particular percentage in a season, it can provide an explanation as part of its annual reporting obligations.