Positive discrimination is the act of treating someone more favourably purely because of a particular protected characteristic, and is illegal in the UK.
However, positive action is legal and, in many cases, is required to maintain fairness and equality. Positive action is about identifying groups who are at a disadvantage (whether this is societal/historical etc.) and taking steps to ensure that more is done to encourage people to participate in fields and roles where they are under-represented.
The key difference, as discussed in a previous post, is providing equality of opportunity.
For example, if you are working in an area with a high Muslim population and you do not employ any Muslim members of staff, you may feel you should look to represent your community better. This is not, of course, a requirement and the law does not say you must have a precisely proportionate staff representation of every protected characteristic group, but a workforce with a lack of diversity may also reveal unconscious biases in your recruitment practices.
If your staff group is not diverse and does not include people from across the protected characteristic groups you will be missing out on the differing perspectives and lived experiences that can allow your organisation or group to better relate to your clients, service users or stakeholders.
So if you’re not allowed to ‘fill your quota’ of minority groups, what are you allowed to do?
You can encourage minority groups to apply by targeting your advertising, going out to engage community groups directly, or by providing role models or champions. If your current workforce is entirely non-Muslim, these practices do not discriminate against them as there is a clear case for your positive action. However, if you owned a shop with an 80% male staff, your recruitment could not focus on employing more men at the expense of women.
The most important thing to remember is that the best candidate must get the job. The misconception of employing someone just because they tick a particular box on an equal opportunities form is not legal. After all the positive action has taken place and you have encouraged a rich and diverse pool of talented people to apply, the final decision must be based on merit.
Nonetheless there are a few more things to consider: In the situation where two candidates are decided on as being equally suitable for the role, if one shares a protected characteristic with an underrepresented group, then this candidate should be preferred for the role.
There is another exception in the application process with regards to disability. It is acceptable to treat disabled people more favourably in the application process due to the huge barriers disabled people face when trying to find work. Again, this is not a requirement, but many responsible organisations put measures in place to ensure that their unconscious biases are balanced out. A common method for this is to guarantee an interview to any disabled applicant who meets the minimum criteria for a job. This means that the disabled person is capable of the job and, in an ideal world, would have been shortlisted anyway although it is sadly not uncommon for employers to reject that application or set a higher standard for that disabled person to meet. This measure encourages more applications and leads to more opportunities for a drastically under-represented group.
There are many more nuances and facets to positive action and it is worth researching the subject thoroughly when embarking on recruitment of staff, trustees and ambassadors.