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What Are The Benefits Of Positive Discrimination In The Workplace?

positive discrimination in the workplace

Positive discrimination is when a person receives favourable treatment, usually because they are from an underrepresented group in society. In the workplace, this is common in the recruitment process for example, for companies to increase equality. But is positive discrimination legal?

Well, actually, this is still considered a form of discrimination which is illegal in UK law based on the Equality Act of 2010, which essentially makes it illegal to discriminate (positively or negatively) based on a particular protected characteristic, such as race, age, gender, etc.

Rather than using positive discrimination to recruit diverse candidates with a range of protected characteristics, you can instead reach out to under represented groups and providing support for those who are equally qualified to ensure you are being fair to all candidates. Rather than positive discrimination in the workplace, this is known as positive action.

During this article, we will explore the differences between positive discrimination and positive action and what effect this has on inequality within the workplace to help decide how effective each method is. The aim here is to avoid unlawful discrimination whilst still ensuring equal opportunity for ethnic minority groups, all age ranges and genders, etc.

What Is Positive Discrimination?

Positive discrimination is when a certain group of people are given favourable treatment based on the societal group they represent. Positive age discrimination, for example, would mean that the protected characteristic of age, would impact how you would treat an older/younger member of society. Positive racial discrimination would refer to how you treat different racial groups, based only on their protected characteristic of race.

Probably the most common example is in the workplace. This would apply when applicants, usually from an underrepresented group in society, are given preferential treatment when hiring managers are choosing candidates for the role. This is usually to increase equality within an organisation based on a relevant protected characteristic that may be lacking in their particular workplace.

The recruitment process is not the only example of discrimination within the workplace. Positive discrimination can also present itself when applicants are applying for promotion or training opportunities at work.

Due to complexities in this area, especially in the UK, it makes sense to seek professional advice from an employment law specialist to make sure all regulations are adhered to and prevent any potential claims from applicants.

As an employer, it’s always a good idea to seek legal advice to ensure you aren’t inadvertently discriminating – positively or negatively – to ensure all applicants and employees are treated fairly, equally, and in accordance with relevant employment law. Positive discrimination UK laws are complicated, so call in legal help if you need it.

What Does Employment Law Say About Positive Discrimination?

Surprising as it may sound based on the inclusion of the word ‘positive’, Employment Law states that positive discrimination is illegal in the UK and can result in fines or other sanctions.

This is because although ‘Positive’ is in the name, which is usually considered a good thing, it is still classed as discrimination which has been illegal in the UK since 2010. Any decisions made based on a person’s physical, social, or demographic attributes (protected characteristics) fall into this category whether it is positively or negatively applied.

The attributes/protected characteristics set out in the equality act are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage or civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

 

If any decisions are made based on a person’s protected attributes, even if positive, this is deemed discrimination and subsequently illegal in UK law. So when employers are making decisions relating to recruitment, training, promotions or redundancy, it’s prudent to avoid using any of these attributes as a reason for your decision.

Of course, you want diverse candidates throughout any recruitment or promotion process, but it’s important to avoid discrimination. We’ll explore positive discrimination in the workplace below, before explaining the difference between positive discrimination and positive action measures, which can be used to ensure you’re recruiting and working with employees appropriately.

positive discrimination and positive action

Examples Of Positive Discrimination

It’s important the correct steps are taken to avoid situations where positive discrimination could occur. As it’s illegal in the UK, not adhering to the regulations could lead to a variety of issues for your business, not least of all financial penalties. Some examples of positive discrimination can be found below:

  1. Recruiting an under qualified person based on their protected attributes to ensure a certain quota of employees from underrepresented groups is met. This is positive discrimination and is considered illegal in the UK.
  2. In an all-female branch where there is a promotion opportunity, an under-qualified male member of staff is appointed in favour of a better qualified female member of staff. This is sex discrimination and is considered illegal in the UK.
  3. When an unqualified member of staff is appointed because they are younger than current team members. This is age discrimination and is considered illegal in the UK.
  4. To meet any targets set by a company around the number of disabled employees an under qualified applicant with a disability is hired. This is positive disability discrimination and is considered illegal in the UK.
  5. When a company is making decisions relating to which employees will be given redundancy, a high performing heterosexual male is let go to keep low performing members of the LGBTQ+ community to meet the company targets. This is positive sexual orientation discrimination and considered illegal in the UK.

 

Advantages Of Positive Discrimination

Positive discrimination enables companies to employ and retain the best talent from underrepresented groups which can help create diversity in their workforce. However, it is considered illegal in the UK so positive discrimination is not a method that companies should use if they wish to adhere to guidelines and regulations. Of course, ensuring you have a diverse work environment is your responsibility as a business owner, but hiring based on protected characteristics alone is never the right thing.

Luckily there is a suitable alternative method that can help companies hire and retain talent from those under-represented groups and create a diversified workforce – it’s called positive action. We will cover this in more detail later in the article as well as providing some information on how you could use this in your business.

Risks Of Positive Discrimination

Being illegal in the UK, the risk presented by using this method is obvious. It can result in legal action being brought against the company.

For example, an applicant may choose to make a legal challenge against the decision to hire someone else if they feel they have been discriminated against in the recruitment process. If found guilty of positive discrimination in the workplace, as the business owner you could find your business facing hefty fines, and the reputation damage to your business could be significant enough to halt other candidates from applying in the future, or potentially send your customers to your competitors.

As well as the potential financial implications on the business from any legal challenges, there are other risks which may increase because of positive discrimination such as discontent between employees and health and safety of other employees if the person you hire for their protected characteristic is not competent for the required job.

Unsuitable employees may not be able to perform the duties required for the role. If they are incapable of performing required duties, this could lead to inefficiencies or mistakes in processing leaving the product or service of a lower quality, too. This will ultimately affect profits which every business wants to avoid.

Positive discrimination can also lead to disharmony within the workplace, usually when it seems that a suitable applicant has been overlooked in favour of someone less qualified. This can lead to an under motivated workforce, low staff retention and potential reputation damage.

Any future employees within these underrepresented groups could also face prejudice because of positive discrimination within an organisation, regardless of their suitability for the role, which can create an incredibly toxic work environment for all.

The effects on employees and the business can be disabling for an organisation. This can have a negative impact on both employees, operations and profitability.

Is Positive Discrimination Ever Acceptable?

In the UK, positive discrimination is illegal however there are exceptions based on special circumstances. These exceptions include examples where the role has an occupational requirement to hold a protected attribute.

An example of this would be a female domestic violence shelter. Due to the nature of the role, most females would feel more comfortable in speaking to a female about these issues and as such, it may be acceptable from a legal perspective to only recruit females.

Positive discrimination is a complex subject and to avoid any potential legal challenges it’s worth seeking legal advice to ensure your company is compliant.

Positive Action – The Alternative To Positive Discrimination

There is another option that companies can use when they wish to increase the diversity within the workforce that is legally compliant and ethical – this is called positive action.

This requires an organisation to actively champion applicants from under-represented groups to apply for training, promotions or vacancies while ensuring there is no preferential treatment.

Just because an organisation champions applications from an underrepresented group, it doesn’t mean they will be given any preferential treatment over any other candidates. It can help encourage more applicants from underrepresented groups in certain sectors like childcare, that may hold open days for men as they are currently under-represented in the sector.

Essentially positive action is all about ensuring under represented groups are given the same training opportunities to ensure they’re equally qualified to other candidates so they can be hired based on their qualifications, experience, and suitability to the role, rather than their protected characteristic.

positive action in the workplace

Example Of Positive Action

Imagine you run an engineering firm that has a workforce largely dominated by males. You would like to increase diversity by recruiting more females although when you advertise for the role, you receive only one application from a female while all others are male. If the female is hired without considering her skills and experience but purely because of her gender, this would be sex discrimination which we know is illegal in the UK.

Now imagine that you target females with advertisements for job vacancies and motivate them to apply. We now receive 5 female applications – in addition to 5 male applications – which gives a wider variety of options to your business to increase equality and diversity without sacrificing quality. There is now an equal chance you will select a male or female that is qualified and suited to the role.

Positive action helps to encourage diversity and support people from underrepresented groups to have an equal chance of success when applying for vacancies based on their skills and experience.

The key here is that it’s their value to the company that gets them the job, not just your desire to create a more diverse work environment.

Advantages Of Positive Action

If you are looking for an increase in equality and diversity in your organisation, then positive action is a helpful method with many benefits to achieve this. Below are some of the main advantages of positive action:

1. Promote Equality And Diversity

Positive action is an important tool for ensuring equality and diversity is represented sufficiently within an organisation during the recruitment and management processes regardless of any protected attributes. It encourages diversity without discrimination.

2. Better Understand Your Customers

It is important for any business to understand their customer base. By having a diverse workforce covering all protected attributes such as age, race or disability, it will allow further insights into the customer base which may not previously have been available. By understanding customers better and their expectations, you can better target your ideal customer which may result in an improved product or service offering.

3. New Skills And Abilities

By recruiting a more diverse workforce, it allows organisations to be more innovative and adaptable as these applicants may bring skills and experience that are lacking within the business and help improve efficiency and profitability. The more varied your workforce, the more open your workplace is to new ideas.

4. Improved Employee Satisfaction

When employees feel that they are valued and treated fairly at a company, it usually results in reduced staff turnover and employee satisfaction. This can lead to greater efficiency and higher profits as their motivation and productivity is increased.

In Summary

By having a diverse workforce, it can provide many benefits to an organisation. As well as an increased knowledge base within the company, it can give a better understanding of customer expectations to help provide a more refined product or service which can lead to increased profitability.

However, as already discussed in the article, positive discrimination is illegal in the UK.

Fortunately, positive action is an extremely effective alternative to motivate those from under-represented groups to apply for roles within the organisation.

As it’s such a complex area, it’s sensible to seek professional advice from an expert who can provide advice to ensure the company does not breach any positive discrimination rules and avoid any potential financial repercussions and loss of reputation.

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