Positive action in recruitment: what is it and how can it go wrong?

The Royal Air Force recently conducted an internal investigation in which it uncovered systemic ‘positive’ discrimination. In mistakenly believing it was pushing the boundaries of ‘positive action’ – which is lawful in the UK – the RAF was in fact acting unlawfully.

Positive discrimination does not exist as a matter of law, but neatly describes a certain type of unlawful discrimination, whereby an underrepresented group is treated more favourably than others. In most cases, as here, the group treated less favourably is white men (as the overrepresented ethnic background and sex in most workforces and sectors).

The debate over the unlawfulness of ‘positive’ discrimination is long-running and some have advocated a change in the law to allow positive discrimination in favour of ethnic minority recruitment (for example, The Chief Constable of West Yorkshire Police).

Further, it is perfectly permissible to treat disabled individuals more favourably than non-disabled individuals – for example, you could quite legitimately have a policy of only recruiting disabled employees.

Disability aside, UK law provides for a modest form of action to combat the disadvantage and underrepresentation of people who share a protected characteristic: ‘positive action’. This article looks at what it is and lessons we can take from well-intentioned employers who have got it wrong.

What is positive action in recruitment?

Split into two powers – a general power and a power related specifically to recruitment and promotion – positive action allows employers to take steps to improve equality within their business where they reasonably think certain issues exist, provided it is a proportionate means of tackling those issues. In the context of recruitment and promotion, the two primary issues/aims are to enable or encourage members of a group that shares a protected characteristic to tackle a disadvantage connected to that protected characteristic or participate in a particular activity in which they are underrepresented.

In the context of recruitment (and promotion), there are two further conditions to comply with:

1. The employer can’t have a policy of automatically preferring people with the relevant characteristic – all suitably qualified candidates must be considered on their individual merits (but a policy may refer to using positive action where it is appropriate to do so).
2. It can only be used in a ‘tie-breaker’ scenario between candidates who are ‘as qualified as’ each other. So, if a white man is ‘more qualified’ for the role than a man with an underrepresented ethnic background, hiring the latter would amount to unlawful discrimination.
   1. An individual’s suitability for a role is clearly not a strictly quantitative test – what grades someone has, the score they achieve on a test etc.
   2. However, the qualitative, more subjective reasons why an employer might consider someone to be well-suited to a role creates a minefield ripe for legal challenge. It is hardly difficult to imagine an unsuccessful candidate challenging an employer’s determination that they were of equal merit as another candidate. Indeed, it has been questioned at EU level whether two candidates are ever truly of equal merit.[1] This is something the English courts are yet to properly grapple with.
   3. Further, unlike the ‘range of reasonable responses’ test that applies to unfair dismissal cases, the tribunal may substitute its own view on both the assessment of the merit of candidates and the proportionality of the measure taken..

It is perhaps for these reasons – plus the fact that discrimination claims bring with them the risk of uncapped liability and potential for media backlash – that there may be a reluctance to utilise positive action in the recruitment context.

But is positive action really the poisoned chalice it is made out to be? With customers and clients increasingly wanting to see businesses meaningfully engaging with EDI – and some now requesting employee data as part of tender processes – employers shouldn’t dismiss the most direct tool to help improve equality within its workforce too quickly. Through examining both the RAF investigation and the first tribunal case on positive action, it will become clear that knowing the bounds of positive action and implementing a robust procedure will go a long way to harness this largely untapped resource.

Why the RAF got positive action wrong

Put simply, the RAF recruited women and ethnic minority applicants without grappling with the ‘as qualified as’ criterion. By the same token, they had a policy of automatically favouring women and ethnic minority applicants over white men.

Annual ‘levels of ambition’ were set over a ten-year period for desired percentages of women and ethnic minority recruits, as well as percentages in the workforce more generally. The levels of ambition were set on the basis that, ‘Defence is neither sufficiently diverse nor as inclusive as it needs to be’.

While clearly laudable, it quickly became apparent that these ambitions were in fact quotas. The first wrong turn was incorporating these supposed ambitions into individual and team objectives. No one wants to underperform. Clearly, if their performance is graded on hitting such targets, they are more likely to recruit in an unmeritocratic fashion in order to do so.

The second and more blatant wrong turn was that when it became apparent that targets would not be met, women and ethnic minority recruits intended to commence employment in a future year were being pulled forward in order to meet the current year target. This is unlawful discrimination – the RAF investigation concluded that 31 white men had lost out on certain payments (i.e., were treated less favourably) as result of the policy.

Why the police got it wrong: Furlong v Chief Constable of Cheshire Police

In 2019, in the first tribunal case on positive action, Furlong, a white male, made it through to the final-stage interview for police officers in the Cheshire Constabulary. He was informed that he had ‘passed’ the interview but there weren’t enough vacancies in the relevant intake for him.

The Constabulary had made one fundamental (and unlawful) change to its interview process, with a view to increasing its number of female, ethnic minority, LGBT and disabled police officers. Interviewees would no longer be scored and ranked based on interview performance. Instead, they simply passed or failed against a set of criteria.

Of the 182 interviewees, 127 ‘passed’ the interview stage and were ‘deemed equal’. Positive action was then used to give preference to individuals with the identified protected characteristics.

The tribunal concluded that the Constabulary had used an artificially low threshold to assess the candidates in order to engage positive action. Not only did the Constabulary clearly not view the candidates as equal (some candidates were flagged as ‘borderline’ passes, while others were highly praised), it was also conceptually difficult to see how 127 applicants could be considered ‘as qualified as’ each other for the role. They had been deemed equal in order to invoke positive action.

It was also found that the Constabulary was already taking various other measures which appeared to be working, including targeted advertising and recruitment fairs and an insight programme and ‘buddy’ scheme intended to aid applications from underrepresented groups. It was not possible to determine whether use of the tie-breaker was proportionate without allowing time for those measures to take effect and to analyse the results.

Taking positive action in recruitment decisions

It is clear from both cases that there was a misunderstanding as to the scope of positive action. Both employers appeared to be blinded by the end goal rather than what is actually permissible under the Equality Act.

If you want to take positive action, some key rules of thumb:

1. Avoid strict quotas – a key point to take away from the RAF investigation is the risk created by imposing strict quotas. Positive action is a modest tool which requires case-by-case proportionality assessments. While knowing your starting point when it comes to diversity statistics and measuring progress can be a useful tool, a quota is likely – as it did in the RAF case – to lead to an unlawful policy of preferring the relevant underrepresented group and recruiting individuals of lesser merit.
2. Process over outcome – the RAF case also highlighted that setting any sort of goal risks becoming a meet-at-all-costs quota, particularly if it is included in team/individual performance goals. This can be a tricky balance to strike. Any goal needs a measure of success, and failing to meet that goal – even if clearly labelled as aspirational – will often attract criticism. The fan-led review into men’s football noted with some disappointment that The FA’s Football Leadership Diversity Code only met two of its eight recruitment targets in its first annual progress report in 2021. But focusing on the ultimate goal doesn’t get you anywhere and risks slipping into a ‘quota mindset’. Instead, set performance targets for the stepping stones to that goal, e.g., increasing applications from underrepresented groups, implementing X number of initiatives to make the employer more appealing to an underrepresented group etc. If you want to set a figure, you should be comfortable with explaining why you didn’t achieve it in any given year.
3. Record why positive action was taken – take a contemporaneous note determining why positive action was taken, in particular:
   1. why the employer reasonably thought individuals with a particular protected characteristic suffered a disadvantage or were disproportionately represented (with evidence to back it up);
   2. consideration of possible actions to achieve the aim of overcoming such issue (including measurable indicators and a review date);
   3. the criteria against which candidates were assessed for the job; and
   4. why, against that criteria, two candidates were considered to be ‘as qualified as’ each other. It is important here to set out whether and why any qualifications, qualities, experience etc. are considered particularly relevant or irrelevant.
4. Keep the ‘aim’ under review – positive action will only remain lawful where the relevant circumstances still exist, i.e., there is a disproportionately low number of individuals in the workforce or sector with a given protected characteristic.

Positive action in recruitment: how we can support you

Positive action is something employers often shy away from due to the complexity of the law involved and the risks of getting it wrong. However, there are countless studies that show the wide-ranging benefits of greater diversity in the workforce. Given positive action is (at present) the most direct way to increase diversity in the workforce, it is worth understanding its outer bounds. If you have any questions or want to explore positive action further, please contact Charlotte Smith or Adam Melling.

[1] Opinion of Advocate General Saggio in Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Case C-407/98, at [28]