When can a worker be given an advantage because of their protected characteristic?
Generally, it is unlawful discrimination for an employer to treat a worker differently than others because of that worker’s protected characteristic. This would in most circumstances amount to direct discrimination in breach section 13 of the Equality Act 2010 (the Act). However, under sections 158 and 159 of the Act, there are specific exceptions for positive action.
Broadly speaking, positive action is when an employer makes a decision to treat a worker more favourably than others because of their protected characteristic, in order to fulfil one of the legitimate aims specified by the Act. For example, if an employer assesses that people of a certain race suffer a disadvantage because of their race, the employer is allowed to take proportionate action to enable or encourage a worker of that race to overcome the disadvantage.
A common example of positive action is in recruitment. An employer may recruit a worker because of their protected characteristic, with the aim of assisting workers with that protected characteristic of getting into roles and industries where they are underrepresented or suffer a disadvantage. Section 159 of the Act deals specifically with positive action in recruitment and promotion.
In basic terms, this section states that an employer can recruit or promote one worker over an other because of a worker’s protected characteristic, but only if the following conditions are fulfilled:
- That the worker who is recruited or promoted is as qualified as the other applicants.
- The employer does not have a policy of treating one group of people with a protected characteristic more favourably than others in connection with recruitment or promotion.
- That the action taken is a proportionate means of achieving a legitimate aim, which is either to assist people with a certain protected characteristic to overcome a disadvantage or help them participate in an activity where their participation is disproportionately low.
Turner-Robson and others v Chief Constable of Thames Valley Police
The issue of positive action was considered in the Employment Tribunal case of Turner-Robson and others v Chief Constable of Thames Valley Police. This case was brought by white police officers, after their employer moved a minority ethnic Sergeant into a Detective Inspector role without any competitive exercise. The employer had promoted the Sergeant as part of an aim to fast-track minority ethnic officers from Sergeant to Inspector. The white police officers bringing the claim asserted that this was unlawful positive discrimination on grounds of race, not protected by the positive action provisions under sections 158 and 159 of the Act.
The Tribunal upheld the claims of direct race discrimination, finding that the white police officers had been treated less favourably because of their race by not being considered for or appointed to the Inspector role. The Tribunal stated that it was not necessary to give the minority ethnic Sergeant the Inspector role without any competitive process, as this officer stood a good chance of being successful on merit.
The Tribunal found that the employer had made a decision to give the role to the minority ethnic Sergeant to achieve their aim but had not carried out a balancing exercise to consider whether the action was proportionate. The Tribunal further found that the employer had failed to carry out an equality impact assessment. The employer’s action had gone beyond encouragement, and it was not a proportionate means of achieving the legitimate aim.
This Tribunal outcome serves as a reminder that employers must still be careful and considerate when making decisions to assist disadvantaged communities in the workplace. The provisions for positive action under the Act are by no means a blank cheque for employers to recruit and promote people based on protected characteristics as they please, there are conditions which must be complied with. Fundamentally, even where an employer has a legitimate aim of advancing equality in the workplace, they must always carry out careful assessments to ensure that their actions are a proportionate means of achieving this aim.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
