Positive Discrimination

By Paul Archer, Head of Employment Law at Lemon & Co Solicitors

Somewhat ironically, it would be perfectly lawful to positively discriminate in favour of disadvantaged groups (for example by straightforward quotas for women or ethnic minorities) if it were not for the anti-discrimination legislation! However, the anti-discrimination legislation has been framed to protect relatively advantaged groups in the same way as it protects relatively disadvantaged groups. For example, men can bring sex discrimination claims, white British workers can bring race discrimination claims, middle-aged workers can bring age discrimination claims, and heterosexual workers can bring sexuality discrimination claims. An employer who wishes to ensure a diverse workforce through positive discrimination by way of quotas or preferential recruitment procedures is at risk of claims for sex, race, age, sexuality or religion/belief discrimination.

The general rule is that the discrimination legislation only permits two kinds of 'positive action' which in summary are as follows:

a) affording members of an under-represented group access to facilities for training which would help make that group fit for particular work

b) encouraging members of an under-represented group to take advantage of opportunities to do particular work

The latter provision may allow employers to place job advertisements in publications that are more likely to be read by members of the disadvantaged group. However, it is important to appreciate that this does not allow employers to offer any preferential treatment when it comes to actually making the recruitment decision.

The interesting exception to the prohibition against positive discrimination is in relation to disability discrimination. It is simply not possible for a non-disabled person to bring a disability discrimination claim on the basis that they have been treated less favourably than a disabled person - only disabled people can bring disability discrimination claims.

As a matter of law, there is nothing to prevent an employer adopting a 'quota' for the employment of disabled people (for example to reflect the percentage of disabled people in the population) or restricting certain jobs only to disabled people. The employer can say 'only disabled people can apply for this job' and there is no risk of a discrimination claim from a non-disabled people. This is an important and poorly understood part of our discrimination law.

As Head of Employment Law at Lemon & Co Solicitors, I have often run training sessions and workshops for disabled people who campaign for more working opportunities for disabled people. Most people (including many HR professionals and Equal Opportunities Officers) simply do not appreciate that positive discrimination in favour of disabled people is lawful. I have often come across many employers who profess a commitment to the employment of disabled people but struggle to achieve this in practice - the answer is straightforward positive discrimination and this, of course, is what campaigning groups of and for disabled people should be working towards.