Out-Law News

‘Positive action’ effective in ‘levelling the playing field’

Trish Embley tells HRNews how the ‘positive action’ provision in the Equality Act can help the recruitment and promotion of women and ethic minorities 

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  • Transcript

    Should employers be looking to ‘positive action’ to improve diversity and help women and ethnic minority groups break through ‘glass ceilings’ into management?  Or is it simply too risky? A trap for the unwary?

    This is in the news again after the government announced plans for a new five-year initiative to increase opportunities for women on boards of the UK’s top listed companies. The FTSE Women Leaders Review which has been announced by the government’s BEIS department is the successor to the Hampton Alexander review, which ran from 2015 to 2020 and was widely regarded as a success. The Hampton Alexander review met its main target of having a third of all FTSE 350 board positions held by women, with the FTSE 100 reaching 36.2% and the FTSE 250 reaching 33.2% cent female representation. Together, this marked a 50 per cent increase in the number of women on FTSE boards over five years.

    People Management covers this and whilst there is very little detail around this initiative at this early stage, there are number of commentators suggesting the new review could focus on the type of roles women hold on FTSE boards with the aim of boosting the number of executive director positions occupied by women. So while the focus of the Hampton Alexander review was the number of women in board-level positions, the new review might consider the roles occupied by women on boards. That approach would encourage  businesses to consider more carefully their internal pipeline towards executive board roles. Business minister Paul Scully said quoted saying businesses in the UK had made ‘great strides’ in improving gender diversity at board level, and urged firms not to ‘take their foot off the gas’ because the evidence shows that more diverse businesses are more successful businesses.

    Many businesses have clearly got that message already and we know from our own client base that there is a willingness to improve diversity and inclusion, helping women and ethnic minority groups break through glass ceilings and the law does help with that, to a point.

    So the Equality Act says employers can actively encourage people from disadvantaged groups to apply for roles, and can provide training to help equip them for the particular work. There is, however, an important caveat in section 159 – so the decision on whom to select must be made on merit alone, except in circumstances where the candidates are “as qualified as” each other, so where you have a tie. But how often will that happen? 

    The Equality Act puts the onus squarely on the employer. So, the employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Employers must not have a policy of treating people who share a characteristic more favourably. They should decide whether or not to take positive action on a case-by-case basis.

    Those provisos are important ones and getting it wrong could result in unlawful discrimination and, potentially, employment tribunal claims. That might explain why, since 2010, employers have tended to steer well clear of positive action. But that is changing. Why is that and how can employers use positive action safely? To help with that I spoke to Trish Embley who joined me by video-link from Birmingham. I started by asking Trish if positive action is becoming more common and, if so, why?

    Trish Embley: “Yes, positive action initiatives are more common because many of us are setting aspirational targets where we recognise that certain groups have been underrepresented for far too long. Changes are happening organically, so we do have to look at certain initiatives on recruitment and in promotion to ensure that those groups that have been historically underrepresented are now both being recruited and progressing within organisations.”

    Joe Glavina: “So what is positive action? What are employers allowed to do?”

    Trish Embley: “It’s really important that a distinction is made between positive action which is completely lawful and desirable, and positive discrimination, which is unlawful direct discrimination. So positive action initiatives really encourage and try to remove the hurdles as to why people perhaps aren't going to apply for certain jobs, or once they're in an organisation they don't progress. So the sorts of things we're talking about are targeted advertising, targeted for certain groups, open days, internships, and then within employment, training, mentoring, coaching, why aren't people progressing? If we have some feedback about why somebody didn't get a promotion, what skills are needed, then we can target those skills at those groups, whether they be on the on the grounds of gender, race, or disability. By contrast, positive discrimination is where we might say, okay, we don't seem to have many, for example, people of a certain ethnicity in this organisation so the next person we will appoint will be from that group. Now, that would be a classic example of unlawful discrimination. So I think what people need to understand is that positive action initiatives are just levelling the playing field, they do not in any way compromise the concept of meritocracy within an organisation. It's not about giving somebody who isn't as skilled for a job, a job. It's saying, what are the hurdles? Why perhaps they might not perform well in an interview? Or what are the skill gaps that that are associated with this group so we can fill that gap and make sure that they're starting at the same place as everybody else.”

    Joe Glavina: “So in terms of implementing positive action initiatives, Trish, what would you say are the key things for HR to be aware of?”

    Trish Embley: “I think what HR needs to be aware of is education generally within their organisations. So first of all, we've seen examples of very altruistic well intended people saying, right, great, I want more women in my team so the next recruit must be a woman. Now, as I say, that will be an example of positive discrimination. We see this particularly with the tiebreaker provisions in the Equality Act, section 159, which allows employers where you've got two candidates who are both equally as good, and where they are underrepresented for the proportion action to be taken, and for the person from the underrepresented group to actually get the role. But section 159 is very clear that the employer must not have a general policy of favouring people from an underrepresented group. So it's couple of things for HR to think about, first of all, when collating your data about whether people are underrepresented care needs to be taken there in terms of data processing, GDPR, etcetera, and then there’s proportionality. Now I think it's important that those individuals who are very altruistic understand where the line is between positive action and positive discrimination, but what we're also starting to see is some fear amongst those from the represented group who might think, oh, does this mean now that I should feel threatened, there's going to be this natural favouring towards underrepresented groups to my disadvantage. That is not what positive action is about but we are starting to see cases come through tribunals where those in the represented group will say, I'm being discriminated against. So I think that's really important, over and above getting the law right, is your communication to everyone in the organisation to say this is not about giving people an unfair leg up, this is a much needed levelling of the playing field. I think it's only if people understand concepts like privilege, which is through their own lived experience, they just think, well, I've worked hard, I've spent a lot of money on my education, why should somebody else be given an advantage? It's not actually an advantage, but there's a lot of communication that needs to be done around that so that people understand and see positive action for what it is. Not for what it is not.”

    We mentioned earlier the latest Hampton Alexander Reports which are published annually. The last one was published in February 2021 and showcases 5 years of progress for FTSE Women Leaders. That report was the last of the 5 year cycle. You can access all of them from the FTSE Women Leaders website. We have put a link to that in the transcript of this programme.

    - Link to FTSE Women Leaders website

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