Out-Law / Your Daily Need-To-Know

Out-Law News

RAF's diversity blunder highlights 'positive action' risk

Kate Dodd tells HRNews about the difference between positive action and unlawful discrimination

We're sorry, this video is not available in your location.

  • Transcript

    The RAF has come under heavy fire from a select committee of MPs over an instruction to favour women and ethnic minorities when selecting individuals for training courses. As Sky News reports, the head of the Royal Air Force, Air Chief Marshal Sir Mike Wigston, has admitted that approach was a mistake after the RAF’s former head of recruitment had identified "around 160 cases" of discrimination against white men as a result of that approach. It’s a clear example of getting ‘positive action’ wrong so how do you get it right? We’ll consider that.

    This goes back to August last year and a story that Sky News first reported with its headline ‘RAF 'pauses job offers for white men to meet impossible diversity targets’. It prompted the resignation of the RAF’s head of recruitment Group Captain Lizzy Nicholl who considered that approach to be unlawful. The man behind that decision, Mike Wigston, was called to appear before a committee of MPs at the end of January to explain himself and apologise. He insisted that there had not been any "active discrimination" against white men but he admitted his approach of favouring women and ethnic minorities when selecting individuals for training courses was wrong.

    A reminder. Positive action is a range of measures allowed under the Equality Act 2010 which can be lawfully taken to encourage and train people from under-represented groups to help them overcome disadvantages in competing with other applicants. However, as this case shows, it’s not straight forward.

    So let’s get a view on this. Kate Dodd is a diversity and inclusion specialist and earlier she joined me by video-link from Manchester to discuss it. I asked Kate for her reaction to this story:

    Kate Dodd: “It’s a really disappointing headline, I have to say, for many reasons basically. Obviously, it’s always disappointing to see any sort of discrimination has taken place but the really sad thing, I think, in this is that, actually, it's clear that the RAF were actually trying to address the fact that they have a huge gender imbalance, they have a huge imbalance in relation to race and ethnicity, and were trying to take steps to address that through positive action. What they did here, unfortunately, was go beyond positive action and they strayed into positive discrimination which, as you know, is unlawful. So, with the very best of intentions, what they did is that they went too far, and they didn't kind of have the data to back up what they were doing as being something that was required.”

    Joe Glavina: “Taking positive action is lawful provided you stick within the scope of what the Equality Act allows but it’s drafted very narrowly and, as this case shows, if you get it wrong you can pay a big price in terms of reputational damage. So it’s a challenge, Kate”.

    Kate Dodd: “It can be done and we've got lots and lots of clients at the moment who we work with on positive action. It is complicated, I'm not going to lie to you. I never ever give advice about positive action verbally. It is so complicated that it's the kind of thing that actually needs a proper sit down, you have to scratch your head a bit and you have to have everything written down, you have to have all of your evidence there because what positive action is, basically, is a way of taking action that's required in order to address an imbalance for people who share a particular protected characteristic, for example, but you need there to be evidence that what you're doing is required, and you need to show, really, that the action that you're taking is going to be capable of addressing that imbalance, but there is a real process to go through but, when done, it really is very effective.”

    Joe Glavina: “The most obvious way to improve diversity is to exclude white men from the shortlist but as this case shows that’s plain wrong, isn’t it?”

    Kate Dodd: “Yes absolutely, it's wrong to exclude white men from a shortlist just in the same way it would be wrong to exclude any women from a shortlist. So, the right approach to that is to make sure that you are thinking about the wording that you're using for your adverts, whether that's an internal or an external one, think about where you're putting that advert, so making sure it's not just in some sort of trade industry press that's only read by a certain demographic, for example. Then when you're inviting people to interview it's great to have a diverse shortlist, but you need to be careful that you're not just simply selecting people based on a certain protected characteristic because in recruitment the stage at which positive action can be taken is where you've got candidates of equal merit and to demonstrate what equal merit is, is a legal test. So, my opinion is you will always need to make sure that you are basing this on really, really solid foundations, work with your lawyers to do that work, and then it can be done and it can be done really effectively. So, I suppose, my main issue, my main message here, is to not avoid doing it altogether because it can be incredibly useful, but just to make sure that you do it carefully so that you avoid any tipping into positive discrimination.”

    Joe Glavina: “So, finally Kate, just thinking about HR’s role in this. We’re talking about the recruitment process so, presumably, HR does have a key role here?”

    Kate Dodd: “Absolutely, and it's all about communication. It's how you communicate what you're doing. So if you are implementing positive action, don't hide it. Don't keep it as something that you hope people aren't going to find out about. You need to get out there, you need to explain what you're doing and why. It’s really important that we train managers in the whole process of recruitment because often what a manager will do is they will be given a diverse candidate list, these people will have been attracted to apply by the very carefully worded job adverts, very carefully placed job adverts, and then what happens is they come in and they have an experience with somebody who hasn't been properly trained in doing inclusive recruitment. So this individual, for example, might not realise about somebody's body language, how that can be affected by culture, they might not realise how somebody's performance might be affected by neurodiversity, for example, and they might say, well, no, this person doesn't quite fit, or they're not quite polished enough, or I saw somebody who I felt more comfortable with, without recognising how bias comes into play in those situations. So, that's the kind of thing it's really important to do otherwise, no matter how much brilliant work you do on positive action, you will keep losing your candidates at the stage at which they're going forward to interview.”

    In case you missed it, last week talked to this programme about another story you may have seen in the news – the decision by fast food chain McDonald’s to sign an agreement with EHRC to protect its UK staff from harassment. Kate Dodd explained the Commission’s powers under section 23 Equality Act 2006 to enforce equality measures where it sees failings. That’s ‘McDonald’s signs agreement with EHRC to protect UK staff from harassment’ and we’ve put a link to it in the transcript of this programme.


    - Link to HRNews programme: ‘McDonald’s signs agreement with EHRC to protect UK staff from harassment’

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.