Positive discrimination means giving preferential treatment to people role based on their protected characteristics. This is often used in recruitment processes in an attempt to increase equality in the workplace. It’s important to understand that positive discrimination is illegal in UK law, as it is still a form of discrimination, regardless of the motives.
An alternative to positive discrimination is positive action. This involves actively encouraging candidates from under-represented groups to apply for job roles and giving them the support they need to have the same chances are other candidates.
In this article, we’ll take a closer look at both positive discrimination and positive action. We’ll explore the differences between these two methods of reducing equality in the workplace, looking at the pros and cons of each, as well as exploring how effective each method is.
Positive discrimination means giving preferential treatment to people who hold a protected characteristic.
In employment, this usually applies to candidates applying for a job vacancy. In an effort to increase equality and diversity in the workplace, the hiring manager might choose a candidate based on their protected characteristics, rather than choosing the most suitable candidate for the role.
However, positive discrimination isn’t just limited to the recruitment process – it can apply to any part of the workplace. For example, positive discrimination could also apply when you’re making decisions regarding promotion or training opportunities.
Essentially, if you make decisions at work based on a person’s protected characteristics, it could be seen as positive discrimination. If you’re unsure, it’s always best to check with an employment law specialist to ensure that you stay on the right side of employment law and avoid potential tribunal action.
The phrase ‘positive discrimination’ might sound like a good thing at first glance. After all, it includes the word ‘positive’! So, you might be surprised to learn that positive discrimination is not legal in the UK.
The reason why positive discrimination is illegal is because it still falls into the category of discrimination. Whether that discrimination is positive or negative, it is cover by the 2010 Equality Act which states that you cannot discriminate against a person as a result of their protected characteristics.
The protected characteristics which are set out in the Equality Act are:
If decisions at work are made as a result of a person’s protected characteristics, this is discrimination. Even if the decision is a positive one, it is still illegal in UK law, so it’s essential that you avoid using protected characteristics to make decisions regarding your employees, whether those decisions relate to hiring, promotion, redundancy or training.
As positive discrimination is not legal in the UK, it’s important that you work to avoid it within your business. Let’s take a look at some examples of positive discrimination to give you an idea of some of the situations in which it could occur.
Positive discrimination enables companies to hire and retain talent from minority groups. This can help to increase the diversity within the workforce. However, it’s important to note that positive discrimination is illegal in the UK, so it is not a technique that you should use if you want to stay on the right side of employment law.
Luckily, there is an alternative to positive discrimination – positive action. This has many benefits and is a common tool used by businesses for recruiting and retaining talent from minority groups. Read on to learn more about positive action and how you could use it in your business.
Positive discrimination is not legal in the UK, so the most obvious risk of positive discrimination is the chance of a law suit being brought against your company.
For example, if another candidate or employee feels that they have been treated less favourably as a result of positive discrimination, they may make a legal challenge against your decision on the grounds of unlawful discrimination. This can result in both reputational and financial risk for your business.
However, it isn’t just the legal implications of positive discrimination that you should be concerned about. There is also risk to the reputation of your business, the risk of causing disharmony amongst employees and health and safety implications.
If you employ someone based on their protected characteristics, neglecting the fact that they aren’t suitable for the role, you could be putting them at risk. After all, you’re asking them to carry out a role that they aren’t best suited to, which could lead to accidents or injuries. Not only that, but you may also be increasing their risk of experiencing stress or anxiety if they’re working in a job role that isn’t right for them.
Another impact of your employee not being right for the role could be a reduction in quality of the end product or service. If they aren’t capable of delivering the product, this could affect your reputation and your profits – something that no business wants to happen.
You’ll also find that positive discrimination creates friction in the workplace, particularly if employees have been passed over for promotion in favour of someone less qualified. This can reduce motivation amongst your workforce, increase your staff turnover and potentially lead to your reputation as an employer being damaged.
Finally, there’s also a risk that future employees with the same protected characteristic may be judged by their colleagues as a result of the prior positive discrimination. This is irrespective of whether they were the best candidate for the role when they were appointed.
Overall, positive discrimination can have an extremely negative impact on the workplace, both in terms of the effect on employee engagement and the reputation and profitability of the business.
Whilst positive discrimination is illegal in almost every situation in the UK, there are some limited circumstances where it is legally allowed. This is usually the case if there is an occupational requirement for employees to hold a certain protected characteristic.
For example, at a domestic violence shelter for women, it may be required that all staff are female due to the sensitivities of the role. In this case, it may be legally acceptable for only women to be recruited into the role.
Before using positive discrimination, it’s always best to seek legal advice to ensure that your situation is a legal exception for positive discrimination to be used. This will help you to avoid potential legal action later down the line.
Fortunately, there is an alternative to positive discrimination, that is both legal and ethical, enabling you to increase diversity within your organisation without putting yourself at risk.
Positive action involves actively encouraging and supporting those who hold protected characteristics to apply for job vacancies and promotions, without giving them preferential treatment.
For example, if you operate in the STEM sector, you might hold open days specifically for women who are currently underrepresented in the industry. This doesn’t mean that their applications will automatically be favoured over males, but it can help to encourage more females to apply for the role. The most suitable candidate can then be chosen from the pool of talent which contains both male and female applicants.
To further illustrate this, let’s imagine you run an engineering firm. The workforce is largely dominated by males and you’d like to increase the number of females in your company.
You advertise a job vacancy and receive 10 applications. One is female, the other nine are male. If you choose the female applicant simply because of her gender, without considering her aptitude and experience, this would be positive sex discrimination which is illegal.
Now, imagine you hold an open day which is only for women to promote career opportunities in your company. As a result of this open day, the 10 CVs that you receive in response to the vacancy are made up of five males and five females. You then choose the applicant that is most suited to the role based on their skills and experience, regardless of their gender. There is an equal chance that you will select a male or female applicant for the role.
This is an example of positive action, which is legal in the UK. Positive action helps to encourage and support people who hold protected characteristics to apply for jobs and promotions, giving them equal opportunities and diversifying the workforce.
There are many benefits of using positive action as a tool for increasing equality and diversity in your workforce. Let’s take a look at some of the key advantages of positive action.
Equality and diversity is essential in every company. Using positive action within your recruitment processes can help to ensure that every group is represented fairly within your company, regardless of any protected characteristics that they might hold.
An overwhelming majority of your customers will hold a protected characteristic, whether it’s their sex, their age, their sexuality or a disability. Having a diverse workforce can help you to better understand your customer base, as well as their needs. This is because your customers will be better represented by your employees when you have a diverse workforce.
Understanding your customers can help you to tailor your products and services to your customers’ needs, as well as enabling you to better target your ideal customer with your marketing.
We all have skills and abilities that are unique to us as individuals. Recruiting a more diverse workforce can help to bring new skills and talent into your business, opening new doors and enabling you to become more innovative and adaptable than ever before. This can help to improve your profitability, as well as expanding your customer base.
When your employees feel that they are treated fairly and equally, this can improve employee satisfaction, as well as their motivation. In turn, this can increase their productivity, maximising your profit margins.
Every business can benefit from improved equality and diversity in the workplace. Not only does this increase the talent within your workforce, but it can also help you to better understand your customers so that you can better tailor your products, services and marketing to your target market.
It’s important to note that positive discrimination is illegal in the UK, so you should not use this as a strategy to improve diversity in your workforce.
However, positive action is a great alternative, enabling you to encourage and support people from minority backgrounds and who hold protected characteristics to apply for job roles within your organisation.
If you’re unsure of whether your plans fall under the umbrella of positive action, it’s always best to check with an employment law specialist. They will be able to advise you further and ensure that you don’t accidentally use positive discrimination, leaving you at risk of legal action and reputational damage.
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