At the end of October, the Confederation of British Industry will be launching a campaign to increase racial and ethnic participation in British businesses. Last week Legal and General Investment Manager (the UK’s biggest fund manager) warned FTSE 100 companies that it would openly vote against the re-election of a Board’s Chair if it failed to include at least one black, Asian or other ethnic minority (BME) member on its board by January 2022. Around 37% of FTSE 100 companies currently have all white boards.

The CBI’s campaign is to be welcomed and long overdue but how do such commendable objectives fit in with current discrimination legislation?

Positive discrimination is in fact generally outlawed in the UK (although there some exceptions for disabled people). Positive discrimination might be described as giving advantage to groups in society who are often treated unfairly. What is permitted in the UK is ‘positive action’, which is rather different.

The first thing to note is that employers are currently under no legal obligation to take positive action although pressure from campaigns like Black Lives Matter and now from the business community itself will hopefully encourage them to do so.

So how do employers take ‘positive action’ for BME people (or other disadvantaged groups) without by risking direct discrimination claims from others who say they are now the ones being disadvantaged?  The legislation is set out in S58 and S59 of the Equality Act 2010. (The Public Sector Equality Duty may also apply to those working in the public sector).

S58 covers the general ‘positive action’ rule. It enables employers to take measures that will encourage greater participation from groups that are under-represented in their workforce. The Equalities watchdog, the EHRC, gives two examples of lawful positive action: providing work-place prayer rooms for Muslim workers or English lessons for workers with English as a second language.

S59 is more controversial because it covers positive action in recruitment and promotion. It applies where an employer reasonably thinks that workers who share a protected characteristic – such as sex, race, age, sexual orientation, religion and belief and so on – are disadvantaged or disproportionately under-represented in their workplace. S59 only applies to candidate who are ‘equally qualified’ and it is really intended to be used in ‘tie break’ situations at the end of the recruitment process.

Let’s say an employer is faced with two equally qualified candidates for promotion, one black and one white. It is a fact that the number of black managers in this particular business is disproportionality low. Under S59 the employer can lawfully select the black candidate over their equally qualified white competitor because the business wants to overcome the current imbalance and increase the number of BME managers.

Employers do need to pay particular attention to the ‘equally qualified’ clause. In the case of Furlong v The Chief Constable of Cheshire Police, Mr Furlong, a straight, white male, won claims for direct discrimination after the force failed to recruit him as a police constable. They wanted to recruit more female, LGBT and BME officers who were under-represented in the force. Mr Furlong won his claim because he could prove that he was better qualified than the other candidates who were offered positions.

Positive discrimination is in fact generally outlawed in the UK (although there some exceptions for disabled people).

It is hardly ever clear cut though. Recruitment decisions rarely come down to qualifications in the formal sense alone. Employers will nearly always give weight to more subjective factors such as experience, strengths and weaknesses. That means there is scope for confusion over how an employer determines that that candidate ‘A is as qualified as B’ for the purpose of S59.  Even the Government Equalities Office’s own Guide acknowledges that candidates of ‘equal merit’ may not be ‘equally suitable’. That said, an employer who recruits somebody primarily because they believe they ‘will fit it’ could be exercising the sort of unconscious bias and racial stereotyping that these new campaigns are hoping to eradicate.

Here are a few key point employers should follow to stay within the law when using positive action:

• Have some indication or evidence that the group or person you want to apply positive action to is disadvantaged or disproportionally under- represented in the workplace. Sophisticated statistical data is not necessary.
• Be prepared to demonstrate that the positive action the organisation is taking is a proportionate means of achieving a legitimate aim.
• Continually review the positive action measures the organisation is taking. If they work successfully, they may at some point overcome the disadvantage and therefore no longer be a proportionate measure to take. That means they may become unlawful.