January is a busy recruitment period, especially in the legal industry.
Research consistently shows that diverse teams tend to produce greater innovation, creativity and profits so it is no surprise that many firms enlist recruiters to help them build a more diverse team.
Recruiters and firms should take care that the steps they take comply with the law. In particular, ensuring their actions fall into positive action rather than unlawful positive discrimination.
What’s the difference?
Positive action includes proportionate measures taken in the workplace to overcome disadvantage, meet specific needs and/or combat underrepresentation of people with particular protected characteristics.
Positive discrimination on the other hand is the unlawful favouring of someone with a particular characteristic by treating them differently in a positive way e.g. an organisation appointing someone from an underrepresented group into a role without considering whether they have the right skills for the post. Other candidates who are better qualified are passed over.
Here are 7 tips to help your firm navigate the difference:
1. Make a concrete plan.
You can help pre-empt any legal challenges by documenting your firm’s decision-making before you take action.
Your firm (the employing entity) has to show that it reasonably thinks that the group it wants to take positive action to recruit:
- Suffers from a disadvantage that is connected to the protected characteristic;
- Has different needs; and/or
- Has disproportionately low participation in an activity.
You do not have to have a complex statistical analysis or research to demonstrate your firm reasonably thinks the above criteria apply, but it is a good idea to carry out some research and to make a record of the basis for the firm’s decision-making in case it is later challenged.
Law firms may wish to refer to the SRA’s diversity data as a starting point. The most recent diversity data can be found here.
2. Document how the firm’s actions will help.
Your firm must show that its actions are designed to:
- Enable or encourage the protected group to overcome or minimise that disadvantage;
- Meet those different needs; and/or
- Enable or encourage participation in that activity.
Again, documenting what actions the firm plans to take and how they will fall within the permitted reasons for taking positive action above can provide a layer of legal protection from later challenges.
3. Continuously review your policy and procedure to ensure it still meets the criteria.
Firms should be sure that they revisit their policies and procedures to ensure that any positive actions they take still meet all relevant criteria. If decisions are based on specific diversity data, it is important to evaluate whether that data has changed over time, and if so, whether the positive action still makes sense.
In particular, firms should continuously evaluate whether any positive actions they take remain proportionate as a means of achieving the legitimate aim of helping a particular group to overcome disadvantage, meet specific needs and/or combat underrepresentation of people with particular protected characteristics.
The EHRC Code warns employers that positive actions that continue indefinitely may well become unlawful. If the employer’s initial positive action remedies the situation, then subsequent actions may no longer be proportionate.
4. Remember that merit is key in promotion and recruitment.
Unlike other general positive action in employment (such as providing mentorship or additional training or support for a particular group), firms must go one step further in promotion and recruitment.
It is unlawful to hire or promote a less qualified candidate because of their protected characteristic, even if the above criteria are met.
Where both candidates are “as qualified” to be recruited or promoted, then the employer can promote or recruit someone based on their protected characteristic (if the above criteria are met), provided:
- The employer does not have a blanket policy of automatic preference for people who share the protected characteristic over people who do not; AND
- Taking the action in question is a proportionate means of achieving the legitimate aim of minimising the disadvantage or encouraging participation in that activity.
5. Make your decision at the end of the recruitment or promotion process.
It will be easier to prove that the firm does not have a blanket policy of automatic preference for a particular characteristic if it can demonstrate that it allows candidates of all characteristics to apply and to proceed through the recruitment or promotion process based solely on merit. Only at the end of the process, if two candidates are equally qualified can the employer lawfully treat one more favourably. It is a good idea to document the criteria the firm used to judge the candidates to prove that the firm genuinely believed the two candidates were equally qualified.
6. Increase the diversity of your applicant pool.
Of course, to even get to the stage where a firm is evaluating whether it can hire or promote someone based on their protected characteristic or someone else, those candidates have to apply in the first place.
Examples of positive action that can promote a more diverse applicant pool include:
- Placing job adverts to target particular groups, to increase the number of applicants from that group;
- Including statements in job adverts to encourage applications from under-represented groups, such as ‘we welcome female applicants’;
- Offering internships to help certain groups get opportunities or progress at work; and
- Hosting an open day specifically for under-represented groups to encourage them to get into a particular field.
But be careful that your firm is clear that the above actions are designed to encourage more diverse applicant pools, not a foregone conclusion that a particular kind of candidate will be hired over others.
Thinking more laterally, a role can be offered on the basis that the firm welcomes ‘flexible working’ since the ability to work flexibly is likely to encourage those with caring responsibilities (children or other dependants); it still remains the case that child caring responsibilities generally falls on women and flexible working can enable women to continue their careers.
7. If your firm wants to take positive action, consider taking legal advice on your proposed action.
Getting it wrong can cost firms financially and reputationally.
Recently, the RAF was found to have discriminated against 31 men because of its policy of fast-tracking ethnic minorities and female recruits.
Similarly, the Cheshire Police were found to have discriminated against a white man because it recruited less qualified candidates over him. The Tribunal held that although its aim of recruiting more women, LGBTQ+ and BME individuals who were underrepresented was indeed a legitimate aim, the method was not reasonably necessary or a proportionate means of achieving that aim.
Good intentions can still land firms in trouble. If in doubt, it is a good idea to seek legal advice before introducing new positive action.
If you are a multinational employer and would like to discuss positive action or positive discrimination in more detail, or if you have any questions arising from this article, please contact Associate Kelsey Murrell or Partner Emma Bartlett.
