Employers risk falling foul of anti-discrimination laws

Employers promoting diversity could be breaching anti-discrimination law

Confusion about the difference between lawful ëpositive actioní and unlawful ëpositive discriminationí could land employers in court

The more imaginative organisations are in trying to enhance diversity in their workplace the more likely they are to breach anti-discrimination law, according to a new report by law firm Nabarro.

The report reveals that contradictions between what employers are doing to promote diversity and the requirements of UK and EU anti-discrimination law are becoming increasingly stark. The more energetic employers are in promoting diversity, the more they risk falling foul of the main prohibitions on discrimination. For example, diversity strategies often include ëpositive actioní measures designed to make workplaces more representative, yet the scope for such measures in much of UK and EU anti-discrimination law is very narrow. Aspirational targets are lawful, but quotas are not and are considered positive discrimination, which is unlawful in the UK.

Sue Ashtiany, partner and head of employment at Nabarro comments:
ìDiversity strategies have now become ubiquitous and few companies want to be seen to be lagging behind. However, the danger is that ëdiversity speakí becomes a cloak for incoherent, inconsistent and unattainable objectives.

ìThe scope for ëpositive actioní is very limited and it seems inevitable in these circumstances that employers and organisations, including well-meaning ones, will run into difficulties. It is easy for actions to slip into the illegal category of positive discrimination. For example, the Race Relations Act (1976), provides only for targeted training and encouragement, and only where members of the racial group in question are under represented in work of a particular kind. Therefore, rather than being praised for promoting equality, progressive employers can find themselves liable for unlawful discrimination.î

The risks are increased by the fact that the law on anti-discrimination has become ever more complicated. The law on discriminatory harassment is a case in point. There are now so many different ways that a person can be harassed unlawfully and definitions of harassment are so unclear, that it is difficult to extract workable rules of conduct.

Sue Ashtiany adds:
ìA discussion at work about the role of women in society could perfectly well lead to plausible claims by one person that they had been harassed on grounds of sex and by another that they had been harassed on grounds of religion. Does that mean that employers should ban discussions between colleagues about contentious issues? Even if this were legally justifiable restriction on freedom of expression, which is debatable, would it be desirable or practicable?î

The report cites a growing number of diversity initiatives that have run into trouble. Gloucester police fell foul of the confusion between positive action and positive discrimination following the de-selection of 108 white men. They faced criticism and tribunal claims under the Race Relations Act (1976) from the white male applicants who challenged the appointment of less-qualified black and minority ethnic (BME) candidates. The force had treated their BME targets as quotas and therefore acted in a way which constituted positive discrimination.

Similarly, the Prison Service was recently criticised because diversity considerations apparently influenced a relocation decision. The Commission for Racial Equality (CRE) investigated claims that the service was relocating jobs from Corby to Leicester in order to attract more non-white workers.

Sue Ashtiany continues:
ìEmployers must avoid the ill-considered and superficial adoption of fashionable elements of diversity. Woolly plans run the risk of resulting in negative publicity and expensive litigation. The encouragement that diversity thinking gives to organisations to define diversity for themselves can lead to a perception that they are safe as long as they stick to their home-grown diversity strategy.î

ìOrganisations need to be more self-critical ñ closely scrutinising diversity plans and pinpointing what success would really look like. What a company should do to promote diversity will vary depending on the organisation ñ its structure and geographical location. A diversity plan for a company in Stockholm will look very to different to one for a business in Birmingham. Key participants need to have sufficient understanding of the law to enable them to give early warning of a problem, particularly when diversity policies stray into the outer reaches of lawfulness.î

Examples of unlawful behaviour include:

- Targeting shortlists at women or ethnic minority candidates
- Recruiting specifically from areas with high ethnic minority concentration
- Pooling only women or ethnic minority employees for promotion

Sue Ashtiany adds: ìThere is a clear case for more space to be made in law for voluntary positive action and plans for a Single Equality Act provide an opportunity for employers to join the debate. While reform is desirable, the ultimate aim must remain the creation of society that operates fairly without the need for special measures.î