What is positive discrimination?

Joe Caccavale

19

October

2020

|

4

min read

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You need to boost diversity.

You’re hiring new team members.

But when it comes down to the final few candidates, can you actually hire someone because of a protected characteristic?

We’ve broken down the laws and regulations around positive discrimination to make them as straightforward as possible...

What is positive discrimination?

Positive discrimination is the practice of favouring someone due to ‘protected characteristics' - in an attempt to reduce inequality.

The goal is usually to increase the number of minority background employees in a business.

In the workplace, positive discrimination could occur if someone is hired or promoted because of their belonging to an underrepresented group.


What is meant by the term protected characteristics?

There are 9 protected characteristics:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief (or lack of)
  • sex
  • sexual orientation

These are factors that could lead to someone being discriminated. 

Examples of positive discrimination

Positive discrimination is most commonly referred to in the context of recruitment.

If two candidates are going for a role, and one is hired over the other - despite being less suitable for the job - because they possess protected characteristics, then this is positive discrimination.

Positive discrimination UK - is positive discrimination legal?

Short answer: no.

Positive discrimination is not legal here in the UK under the Equality Act 2010.

It is also unlawful to set quotas to hire or promote people with a given protected characteristic.

However, positive action is lawful.

Positive action equality act

The Equality Act 2010 replaces previous anti-discrimination laws with a single act, making the law easier to understand and follow.

According to gov.uk, the Act “legally protects people from discrimination in the workplace and in wider society”.

The Equality Act is designed to enable employers to assists and encourage people from under-represented or disadvantaged groups - using measures such as positive action.

What is positive action?

Positive action entails hiring/ promoting a candidate with a protected characteristic over another provided they are as equally qualified as the other candidate. 

For this to be legal, the candidate must:

  • Be of equal merit to the next best candidate
  • Have a characteristic that is underrepresented in the workforce
  • Or have a characteristic that tends to lead to a disadvantage
  • Doesn’t belong to a group that is usually favoured for recruitment by the employer 

Positive action is voluntary. 

The law doesn’t dictate that employers have to favour a candidate based on their background.

It’s that they can do so if necessary.

And unlike the example of positive discrimination above, the candidate with the protected characteristic cannot be less suitable than the candidate(s) they were hired over. 

Whilst positive action is arguably most impactful when used in recruitment, it also covers other workplace activity.

You could host events or training for given groups e.g. women in tech or STEMM.

Examples of positive action 

You’re down to the two final candidates.

They’re both equally qualified and skilled.

However, one candidate is from an ethnic minority background - one that is underrepresented in your organisation.

In this case, positive action would be to hire this candidate in order to assist the person from the underrepresented group - which is completely legal so long as they are of equal merit.

How to know if candidates are of ‘equal merit’

If you can’t prove that candidates are of equal merit, you could be in hot water.

The only way to assess candidates accurately is to measure them against set criteria.

Here at Applied, we use skill-based testing that completely replaces the CV/ cover letter process - for fairer and more predictive hiring.

For a given role, hirers list a mix 6-8 technical/ soft skills that are necessary to succeed in the role.

They’d then create 3-5 ‘work sample’ questions to test these skills.

 Work samples simulate individual parts of the role by posing hypothetical situations and task that candidates would encounter should they get the job.

Each question is scored on a 1-5 scale against pre-determined criteria.

We score interviews in the same way too.

At the end of the process, each candidate will have a score - and so ‘equal merit’ can be proven.

If you’re looking to use positive action, we’d recommend checking out our hiring process in full here.

We started Applied to help teams improve diversity by de-biasing their hiring process. The Applied platform replaces CVs and standard, bias-based interviews with predictive, behavioural science-backed assessments to find the best person for the job, regardless of background. 

To find out more about how we do this, check out our resources, or go ahead and start your free trial.