When is it OK to positively discriminate?

As a general rule positive discrimination (whereby an individual is favoured because they have a certain characteristic e.g. are of a particular race) is still in most cases discrimination because by nature this involves treating persons who do not have that characteristic less favourably. There are some areas of discrimination law where very limited positive action is permitted, such as where a person has a disability or where having a particular characteristic is a requirement for the role, e.g. a women’s refuge requiring a counsellor working there to be female.

From April 2011 a new provision in the Equality Act 2010 will come into force which will provide limited scope for an employer to positively discriminate in recruitment and promotion.

This positive discrimination will only be permitted in very limited and specific circumstances, essentially where you have two candidates of equal qualification for the role, the employer believes that a particular group are disadvantaged or underrepresented within its organisation and therefore selects one candidate over the other on this basis. Equal qualification is intended to mean not just academic qualification, but a general assessment of suitability for the role. For example, if a company is recruiting for an architect to join a department which is exclusively male, there are two equally suited candidates one male and one female; the employer could decide to opt for the female candidate on the basis that they are underrepresented within the department. The legislation is not intended to allow organisations to have a policy on positive discrimination or to filter candidates on this basis as to do so would lead to the risk of a discrimination claim.

Positive discrimination is not mandatory and an employer will not be in breach of the Equality Act to have failed to apply any positive discrimination. In fact unless applied carefully with a clear assessment that two candidates are of equal merit, there is a risk of a claim for discrimination from the unsuccessful candidate. Positive action is entirely optional and therefore any decision to apply it should be made with caution.

For advice on any aspect of discrimination law, contact Theresa Mimnagh or Anna Rabone on 01273 236 236.