From time to time we are contacted by journalists seeking background information or a legal angle on a news story, such as this one about positive discrimination. We have written about this topic before. We are always happy to help them because it minimises the misinformation about employment law in the media. Even though they generally call us with little notice to meet their publication deadlines!
One such story recently was that the Metropolitan Police is introducing extra help to minorities with the cost of training in order to promote diversity. It will give new recruits £1000 towards the cost of a certification if they are female or from an ethnic minority, but White entrants and males get only £500. One person’s positive discrimination is another person’s negative discrimination.
There are several different types of unlawful discrimination, including direct, indirect, harassment and victimisation and a couple of others. This is direct discrimination.
There are very limited exceptions when direct sex or direct race discrimination is lawful. The Met is relying on the exception for positive discrimination. This legitimises what would otherwise be unlawful direct sex or race discrimination if all of the following are true.
- The employer believes that minority entrants are not proportionately represented.
- That belief doesn’t have to be right, only one that a reasonable employer would have.
- The employer takes steps to enable or encourage minorities to participate.
- The steps it takes must be ‘proportionate’. This means carefully applying a balancing exercise, taking into account factors such as the size of the diversity gap, the amount of help being given to the minorities, the seriousness of the socio-economic difference and the existence of other, less discriminatory ways of fixing the issue.
It’s natural to want to diversify your workforce, and positive discrimination is probably the only way to do it if you are not getting diverse applications, but those who are being discriminated against might have questions about whether this decision is proportionate; questions such as this:
- How has the employer arrived at a one-size funding amount? Was it carefully-calculated or just pulled out of the air?
- How come the funding is the same for both women and ethnic minority candidates? This looks like a broad-brush approach. If women are better- or worse-represented in the Police than candidates with an ethnic minority background, did the Police consider giving them different funding amount?
- Similarly, is it appropriate to treat all those with a minority background with a broad brush? For example, the Black community might be well-represented whilst Asian staff are less well-represented. But both minorities get the same funding.
- If other forces follow suit, will the funding be the same as the Met’s, or will it be tailored because other parts of the country have a difference diversity profile?
- What will a candidate need to do to show that they qualify for the extra funding – is it enough to tick a form, or to honestly identify as such, or to reasonably identify as such? Our understanding (eg from here) is that the Met will rely on self-declared ethnicity data. If so, could this measure and similar measures provide an incentive for more people to self-declare as having minority status in future? Positive discrimination could lead to a ‘tickbox culture’, where the diversity figures start looking better even though the diversity of the workforce doesn’t really change.
Journalists with queries should email us on info@www.hattonjameslegal.co.uk.