Positive discrimination: The exception to the rule

Positive discrimination: The exception to the rule

Disability discrimination

"A majority of people, including many HR professionals and equal opportunities officers, simply do not appreciate that positive discrimination in favour of disabled people is lawful," says Paul Archer, head of employment law at Lemon & Co Solicitors.


Somewhat ironically, it would be perfectly lawful to positively discriminate in favour of disadvantaged groups (for example by straightforward quotas for women or ethnic minorities) if it were not for the anti-discrimination legislation.

However, this legislation has been framed to protect relatively advantaged groups in the same way as it protects relatively disadvantaged groups. For example, men can bring sex discrimination claims, white British workers can bring race discrimination claims, middle-aged workers can bring age discrimination claims, and heterosexual workers can bring sexuality discrimination claims.

An employer who wishes to ensure a diverse workforce through positive discrimination, by way of quotas or preferential recruitment procedures, is at risk of claims for sex, race, age, sexuality or religion/belief discrimination.

The general rule is that the discrimination legislation only permits two kinds of 'positive action' which, in summary, are as follows:

  • Affording members of an under-represented group access to facilities for training which would help make that group fit for particular work.
  • Encouraging members of an under-represented group to take advantage of opportunities to do particular work.

The latter provision may allow employers to place job advertisements in publications that are more likely to be read by members of the disadvantaged group. However, it is important to appreciate that this does not allow employers to offer any preferential treatment when it comes to actually making the recruitment decision.

Disability discrimination

The interesting exception to the prohibition against positive discrimination is in relation to disability discrimination. It is simply not possible for a non-disabled person to bring a disability discrimination claim on the basis that they have been treated less favourably than a disabled person - only disabled people can bring disability discrimination claims.

As a matter of law, there is nothing to prevent an employer adopting a 'quota' for the employment of disabled people (for example to reflect the percentage of disabled people in the population) or restricting certain jobs only to disabled people.

The employer can say "only disabled people can apply for this job" and there is no risk of a discrimination claim from a non-disabled person. This is an important and poorly understood part of our discrimination law.

I have often run training sessions and workshops for disabled people who campaign for more working opportunities for disabled people. A majority of people, including many HR professionals and equal opportunities officers, simply do not appreciate that positive discrimination in favour of disabled people is lawful.

I have often come across many employers who profess a commitment to the employment of disabled people but struggle to achieve this in practice - the answer is straightforward, positive discrimination and this, of course, is what campaigning groups of and for disabled people should be working towards.

For more information, please visit the Lemon & Co Solicitors website or call 01793 527141.

Comments

Anna Bowen's picture

Dear Paul

I found your article on positive discrimination very interesting however I have to disagree with your final statement in relation to people with disabilities "the answer is straightforward, positive discrimination and this, of course, is what campaigning groups of and for disabled people should be working towards". Speaking as a disabled person as well as someone who has worked in HR in for 11 years, in my experience people with disabilities only want any necessary adaptations to be made to compete on an equal footing as their able bodied counterparts and for people not to make assumptions about them and more specifically about their abilities. Positive discrimination (not positive action) leads to resentment and stigmatisation by other employees. Comments such as "you only got that job because of your disability" are likely to occur. Employers must be careful not to put disabled people into roles they are not equipped to do ultimately leading to an association between disabled people and a lack of competence. Employers must take care to ensure that the person specification is met and that disabled employees are capable of doing the job applied for, obviously giving full consideration to any adjustments.

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