Positive discrimination at work

What steps can be taken to avoid under-representation of particular groups in the workplace, particularly as the law currently frowns on positive discrimination. Solicitor James Hall outlines the legal requirements.

The Problem

Recent news reports stated that GCHQ, Britain's "secret eavesdropping centre", is failing to recruit sufficient ethnic minority staff to fulfil its anti-terrorism mandate. Some languages are particularly under-represented and there is a lack of employees able to identify codes and local nuances that are key to acquiring important security intelligence. Black and Asian staff are thought to make up just 2.5% of the 5,000-strong workforce.

While the strict nationality and residence requirements of GCHQ are partly responsible, this again raises the debate as to what steps can be taken to avoid under-representation of particular groups in the workplace.

Many companies are uncertain what they are able to do. Recent research shows that although 90% of companies have equal opportunities policies, only 52% take any specific action to ensure the application of these policies.

The Law

The process of actively trying to employ or attract staff from certain groups is known as positive action or positive discrimination. Positive discrimination is commonly held to be the process of actively discriminating against well-represented groups in favour of an under-represented group, whereas positive action is a "softer" version of trying to encourage certain groups, or make it easier for them to gain employment than it would be otherwise.

The groups in question can be drawn from any number of under-represented communities. Commonly, these are held to be ethnic minorities, or women, but can also include homosexuals, disabled persons, or any other group found to be in a minority, for example certain religions.

Under current law, the concept of positive discrimination is frowned upon and it is generally against the law. However, there are allowances made for a "genuine occupational qualification/requirement" in terms of race or sex under the Race Relations Act or the Sex Discrimination Act. For example, a community organisation set up to represent a certain ethnicity may be able to discriminate in favour of employing an individual of that ethnicity.

The ‘softer' approach of positive action is more flexible and, provided that it is handled appropriately, is often legal. This could include advertising a role in an area or location frequented by people of a certain ethnic background or sending representatives to events such as gay pride marches.

Proposed changes under the Equality Act 2010

Many provisions of the Equality Act are due to come into force on 1 October. A section on positive action in relation to recruitment and promotion has been drafted but the Government is still considering how best to implement this. No commitment has been made as to when this will come into force.

Expert Advice

Employers need to adhere to the current law for the foreseeable future.

The best way to ensure that you are in compliance with the law, but are meeting any internal equal opportunities objectives, is to make sure that your organisation is as open as possible to the recruitment of under-represented groups.

It is important to not just consider equality from a traditional race and sex perspective. There are many benefits in having a workforce that is representative of society as a whole, including different religions, sexualities and physical abilities.

Checklist

â- Look at the make-up of your workforce and identify any groups that may be under-represented. Try to work out why this may be the case and what steps can be taken to remedy this.

â- Make sure that your workforce does not put across a discriminatory attitude that may be off-putting to individuals from under-represented groups.

â- Keep abreast of any changes that the Equality Act may introduce to this area in the future.

Beware!

If you are keen to see greater representation from a particular minority group, ensure that your actions are not to the detriment of your majority workforce.

If you want to rely on the ‘genuine occupational requirement' make sure that you research this area thoroughly, or seek specific legal advice. It is a complex area and interpretations can at times appear conflicting.

Contact

James Hall is a solicitor at Charles Russell LLP