Employers should be positively cautious

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Although positive action (also known as positive discrimination) is generally unlawful, an employer can in certain circumstances take action to support individuals who share a protected characteristic such as race, gender, sexual orientation, disability or age. The employer must reasonably believe the individuals suffer a disadvantage, have particular needs or are disproportionately under-represented because of their protected characteristic.

If the above applies, the employer can take positive proportionate measures without the risk of a discrimination claim from individuals without that protective characteristic, as long as any action can be shown to be a proportionate means of achieving a legitimate aim.

In this case, Cheshire Police Force were found to have unlawfully discriminated against a white, heterosexual, male claimant during their recruitment process by imposing an artificially low threshold to a pass/fail assessment in favour of female, BME, LGBT and disabled persons.

The legitimate aim relied on by Cheshire Police Force was to improve diversity as it considered that these groups were under-represented in its workforce. However, it failed to show that the positive action undertaken during the recruitment was proportionate. In particular Cheshire Police Force hadn’t taken account of the potential effect of its previous positive action measures (which were commended by the tribunal) and had failed to take the proportionate step of quality assessing candidates and then reintroducing a merit based analysis in a later part of the recruitment.

The case emphasises the importance of carefully considering fair and transparent initiatives to improve the diversity of a workforce. Proportionality is key, and employers should ensure that they have a clearly identified aim and robust evidence. They should have considered the discriminatory impact on individuals without that protective characteristic, and that any measures taken are time-limited and regularly reviewed. The Equality and Human Rights Commission provides guidance to employers on appropriate ways to improve diversity within the remit of the Equality Act.