Positive Discrimination

Under UK law, employees have the right to be treated equally in the workplace. This means that discrimination has no place in the workplace, where employees should be given the same chances, no matter what characteristics they hold.

Positive discrimination means favouring a person because of their protected characteristics, which leave many people wondering if this is an acceptable practice at work. Could this be an effective way of improving workplace equality and diversity?

In this article, we’ll explore positive discrimination in more detail, including the legalities around it and how it compares to the similar practice of positive action.  

How Can Discrimination Be Positive?

When we talk about discrimination, we usually talk about people who are disadvantaged as a result of their protected characteristics. However, there is also a concept known as positive discrimination, which involves a person being favoured because of those protected characteristics, despite them being less capable than another person. This could happen during the hiring process when deciding who should be promoted or at any other stage during the employment process.

Whilst positive discrimination is often done in an attempt to reduce inequality in the workplace, it does raise some ethical issues. So, how is positive discrimination put into practice in the workplace, and is it legal in the UK? Read on to find out.

Looking for advice on positive discrimination? Our expert team is here to help. Contact us today for advice on HR and employment law

What Is Positive And Negative Discrimination?

Discrimination can be both positive and negative. This may come as a surprise, as it’s usually negative discrimination that we hear about. Let’s take a look at the two different types of discrimination and where you might see them.

Negative Discrimination

Negative discrimination means putting a person at a disadvantage as a result of their protected characteristics. For example, this could mean overlooking a person for promotion because of their religion, despite them being the most qualified employee for the role.

Positive Discrimination

Positive discrimination means favouring an individual because of their protected characteristics, despite that person being less capable or less qualified than another individual. For example, if a person is awarded a promotion due to being disabled, even though another person without any protected characteristics was more qualified for the position, this could be seen as positive discrimination.  

The goal of positive discrimination is usually to reduce inequality in the workplace. This could include increasing the number of employees who are from minority backgrounds within the business. However, this does not necessarily mean that positive discrimination is the right thing to do, or that it is legally justifiable.

Protected Characteristics – Explained

When we’re talking about discrimination, whether that be positive or negative discrimination, the term ‘protected characteristics’ will regularly crop up. But what are the protected characteristics and what does it mean to possess one of these characteristics?

The Equality Act 2010 sets out the protected characteristics against which it is illegal to discriminate. If a person holds one of these characteristics, it is illegal to discriminate against that person as a result of their protected characteristic.

The protected characteristics that are set out in the Equality Act are as follows:

  • Age
  • Disability
  • Gender reassignment
  • Marriage or civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation
Examples of positive discrimination

Examples Of Positive Discrimination

There are many different ways in which positive discrimination can take within the workplace. Let’s take a look at a few examples to illustrate this.

  1. There are two people who are applying for the same job role. One of the applicants is from an ethnic minority and is underqualified for the role. However, the hiring manager decides to hire the applicant to increase the diversity of the company, turning down the more qualified applicant. This could be classed as positive discrimination as the hiring manager has chosen the applicant who comes from an ethnic minority, rather than the applicant that was best qualified for the role.
  2. A business is forced to make redundancies due to a reduction in profits. An employee with a disability is underperforming, but the company decides to make a better performing employee redundant, in order to maintain their record for employing those with disabilities. This could be classed as positive discrimination as redundancies were made as a result of protected characteristics, rather than being based on individual performance.
  3. There is an opportunity for promotion within the business and two employees decide to apply – one male and one female. The female employee is better qualified and has more experience than the male. However, as all of the existing managers are female, the hiring manager decides to promote the male to increase the diversity of the team. This could be seen as positive discrimination, as the hiring manager has chosen the employee based on their gender, rather than their skill set.

What Are The Effects Of Positive Discrimination In The Workplace?

Whilst positive discrimination may seem like the answer to increasing diversity and equality in the workplace, there are some negative consequences that may occur as a result.

The most significant impact of positive discrimination in the workplace is that it may have an impact on morale and employee satisfaction. If your existing employees start to think that decisions when it comes to hiring and promotion are being made based on protected characteristics rather than skills, experience and performance, you may find that they become dissatisfied with their job and morale suffers as a result. They could even lodge a claim at an employment tribunal for discrimination if they are overlooked for promotion.

If you begin to make hiring decisions based on protected characteristics and ignore skills and experience, you might also find that the collective skills and experience held by the team drop as a result. Whilst the diversity and equality of your team may be increased, it will have a negative impact on performance if you don’t consider qualifications and experience in your hiring decisions, and your operations may suffer as a result.

To avoid positive discrimination in the workplace, it’s important to ensure that you make decisions based on pre-determined criteria, rather than the protected characteristics that are held by the applicant.

Is Positive Discrimination Legal In The UK?

It can be tempting to utilise positive discrimination to increase diversity in your workforce, as well as to give greater opportunities to those with protected characteristics. But is positive discrimination legal in the UK, and is it something that you should be using?

In the UK, it is illegal to treat a person who holds protected characteristics more favourably than someone who is better qualified or experienced that doesn’t hold a protected characteristic. Although you may think that you are discriminating for a positive reason, it is still discrimination and is therefore illegal.

Whether you are hiring new staff, promoting existing employees or deciding who to make redundant, it should be done based on the skills, qualifications, performance and experience of the individual people, rather than the characteristics that they hold.  

Looking for advice on positive discrimination? Our expert team is here to help. Contact us today for advice on HR and employment law

What is positive action

What Is Positive Action?

As positive discrimination is illegal in the UK, you might be wondering how you can go about diversifying your workplace without breaking the law when it comes to equality. This is where positive action comes into play.

Positive action was introduced in 2011 and was intended to encourage and facilitate the recruitment and promotion of those who hold protected characteristics, such as those from minority backgrounds. This enables an employer to decide between two equally qualified candidates based on their protected characteristics.

For example, if a company is hiring for a position and two equally qualified and experienced candidates apply, the hiring manager can legally decide to employ the candidate who holds a protected characteristic over the candidate without any protected characteristics.

What Is The Difference Between Positive Discrimination And Positive Action?

At first glance, you may think that positive action and positive discrimination are the same things. After all, both have the goal of increasing diversity by giving opportunities to those who might otherwise be overlooked. However, there are some important differences between positive discrimination and positive action that you need to be aware of.

Positive discrimination is the practice of treating people who hold protected characteristics more favourably than people in other groups, even if they are less qualified or experienced. On the other hand, positive action involves taking steps to increase representation, without using preferential treatment.

A key example of positive action is when organisations provide funding and support for women who are interested in Science, Technology, Engineering and Maths (STEM). STEM jobs are typically male-dominated; however, by providing targeted initiatives aimed at women (who tend to be underrepresented), organisations can make positive steps towards increasing diversity in their workforce.

It’s important to note that positive action could become positive discrimination if the company then decided to employ a less qualified female in the STEM role to increase diversity, rather than a more qualified male. However, if a male and female both applied for the same role and were equally qualified and experienced, the company would be allowed to choose to employ the female over the male, in order to increase diversity in the workforce under positive action.

Using positive action in the workplace

How Can You Use Positive Action In Your Workplace?

Whilst positive action is voluntary, it is a great way to increase diversity within your company and help to lessen the disadvantage that many minority groups find themselves facing.

Increasing the diversity within your workplace can also benefit your business, by creating a more diverse pool of talent within the organisation and by bringing new experiences and outlooks to the team. Having a diverse team can also help to provide a greater understanding of the needs of your customers, whatever background they may have.

However, it is important that you carefully consider what type of positive action may be appropriate for the situation, as well as ensure that your plans will not become discriminatory, no matter how positive the intentions of those actions might be.

Examples of ways in which you might choose to use positive action in your workplace include:

  • Holding an open day or event specifically aimed at an under-represented group, encouraging them to seek opportunities in the field. For example, holding STEM events aimed at females.
  • Advertising job roles which target specific under-represented groups, in an attempt to increase applications from that group.
  • Where two equally qualified and experienced applicants apply for a job role, consider favouring the application from an under-represented group.
  • Add a statement to your job adverts that encourages applications to be made from under-represented groups. For example, ‘we particularly encourage applications from women, disabled and Black, Asian and Minority Ethnic (BAME) candidates’.

Want to discuss positive action with a HR and employment law expert? We’re here to help. Contact us today for advice on HR and employment law

Related Questions

Is Positive Action Legal?

Positive action is permitted under the Equality Act 2010. This is because positive action can encourage people from under-represented groups to train and apply for roles that they might have otherwise felt at a disadvantage for. This can help to level the playing field when it comes to creating equality for all people, whatever their background. However, it’s important that you ensure that your actions don’t fall into the category of positive discrimination, which is illegal in the UK.

Can You Have Positive Discrimination?

Many business owners are surprised to learn that positive discrimination is a real thing, and despite its name, it is actually illegal under the Equality Act 2010. This is because employers have a responsibility to provide equal treatment to all employees and job applicants. If a decision regarding hiring, promotion or redundancy is made based on an individual’s protected characteristics, the employer could be found to be discriminating, leading to a claim at the employment tribunal.

In Summary

As an employer, you have a responsibility to treat your employees and any potential job applicants fairly and equally, whether or not they hold protected characteristics. Positive discrimination may sound like a positive thing, given its name, but it’s still illegal under the Equality Act 2010.

If you need assistance when it comes to increasing diversity in your workplace or advice regarding positive discrimination, we’re here to help. Contact us today for expert advice on HR and employment law.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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