Legal Insight: Positive discrimination - A trap for the well intentioned?by
Recent publicity on the use of positive action in recruitment or promotion in tiebreak situations has left HR directors with a dilemma.
Should positive action be used to improve diversity either in the organisation generally or to help women and members of ethnic minorities break through “glass ceilings” into management? Section 159 of the Equality Act 2010 allows employers to discriminate positively in order to help overcome disadvantage or under-representation of people with protected characteristics ie gender, race, religion or belief, sexual orientation, age or disability. Employers can discriminate positively in the recruitment or promotion process in favour of a candidate in an under-represented category where:
- They are as qualified as another candidate without that protected characteristic
- It is not a policy of the employer to favour candidates with protected characteristics
- It can be justified as a proportionate means of achieving a legitimate aim, for example, improving the representation of women or ethnic minorities in the business generally or at senior levels.
This situation has been widely reported as allowing positive discrimination in tiebreak scenarios, in which a recruiter has a choice between two suitable candidates. However, it is not that simple. The candidate not selected after affirmative action has taken place, can still successfully claim direct discrimination unless the employer concerned can show that the requirements of Section 159 are met. There are four potential hurdles here: 1. It is for the employer to show that there is under-representation or disadvantage If the percentage of women in the business or at senior levels is very low, finding proof might be straightforward. But how should an employer go about establishing appropriate age groups for comparison, for example? And should an employer based in London compare the percentages of ethnic minorities in its business with the population of the borough in which it is located or that which is within commuting distance? The figures are likely to be very different. 2. There is no definition of “as qualified” The lack of definition for “as qualified” is the nub of the problem. What is a genuine tiebreak? The explanatory notes to the Equality Act suggest that it is “a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance”. But this is so vague as to be meaningless. The Government Equalities Office also produced a “quick start” guide, which is available on the Home Office website. It refers to candidates of “equal merit” and states: “Employers should establish a set of criteria against which candidates will be assessed when applying for a job. This can take into account a candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job.” This statement indicates that employers must consider whether candidates are of equal merit in relation to the specific job or position that they are applying for. So, while two candidates may be considered to be of equal merit for one particular post, the same two candidates might not be equally suitable for another. Moreover, if the pass mark in an assessment is set at 70% and one candidate scores 71% and another score 91%, it would generally be wrong to consider that, just because both passed the minimum success threshold, the two candidates are of equal merit. Lack of case law But these arguments only muddy the waters further and still do not answer the question of what does “as qualified” means? Some people suggest that positive action can be used when candidates meet the essential or desirable criteria for a given job. But what happens if several candidates meet those criteria but one has more experience or an advantageous qualification that is not listed in the person specification? Are they “as qualified”? Candidates will rarely have identical academic backgrounds and it would be near impossible for them to have the same work history, particularly in the case of senior positions. In addition, recruitment decisions are not based solely on qualifications but on a candidate’s work history and experience in the field as well. Soft skills such as how well job applicants might relate to customers or whether they have the right qualities to manage a particular team are often informally tested at interview too. This means that it is hard to envisage a situation in which there is a genuine tiebreak. But the as-yet untested question is to what extent employment tribunals will ignore differences between candidates in favour of adopting a broad brush approach to “as qualified”. Without case law on the issue, employers are taking a huge risk using positive action given the potential claims and negative publicity that may arise. 3. What amounts to a “policy” of favouring candidates with protected characteristics? While the Equality Act’s explanatory notes suggest that a policy would automatically favour under-represented candidates, the Government Equalities Office’s quick start guide claims that the Act does not prevent an employer from having a routine policy of being prepared to use positive action where it is appropriate to do so. So how is this situation to be judged? How often would an employer have to use positive action before a tribunal found that a policy had developed? The problem is that this provision is poorly drafted and not defined properly. 4. The employer has to justify positive action in each case While it should not be difficult to establish that improving under-representation or reducing disadvantage is a legitimate aim, it will still be up to each employer to show that their positive action was proportionate in each situation. In other words, there is no certainty for employers when implementing positive action. Each instance of such activity would be open to challenge and review by an employment tribunal if considering a direct discrimination claim from a rejected candidate. It is important to remember that Section 159 of the Equality Act is a power, not an obligation. If employers do not positively discriminate, the rejected “tie break” candidate has no discrimination claim to make. On the other hand, if positive discrimination is used, the rejected candidate has multiple opportunities to challenge its use by bringing a direct discrimination claim. Remember also that the decision-maker in recruitment or promotion scenarios can be made a party to discrimination proceedings and, therefore, face personal liability. Which of your managers is going to want to take that risk? However well intentioned, an employer that uses positive action leaves both the business and decision-makers open to potentially expensive claims. Without further guidance from the government or the courts, there are simply too many ways for them to get it wrong.
Adrian Hoggarth is head of employment and Louise Taft is a senior solicitor at law firm, Prolegal.