In this blog we take you on a whistlestop tour of what positive action is and why employers should be careful when making decisions or policies with the intent of taking positive action, in light of Turner-Robson and others v Chief Constable of Thames Valley Police.
What is positive action?
Positive action refers to measures that employers can take to help employees or applicants from disadvantaged or underrepresented groups overcome or minimise their disadvantage, or to meet their different needs. It is a way to promote diversity in the workplace and is provided for under the Equality Act 2010 (EqA 2010), sections 158 and 159.
One example of positive action being used is in the sports industry, where positive action has been taken to encourage the hiring of more black managers in football clubs. Another is the armed forces, where typically men dominate the workforce.
There are two main types of positive action; general positive action and positive action in recruitment or promotion (often known as “tie-break” situations).
Employers can take general positive action where they reasonably think that:
- A group of people who share a protected characteristic (sex, race, disability, sexual orientation, religion or belief, age, marriage and civil partnership, pregnancy and maternity, or gender reassignment) suffer a disadvantage connected to that characteristic;
- People with a protected characteristic are disproportionately underrepresented in an activity or field; or
- People with a protected characteristic have specific needs linked to that characteristic
. - General positive action can include targeted training, mentoring, or outreach programs to encourage members of the underrepresented group to apply for jobs or participate in activities where they are underrepresented.
Tie break situations are a more specific form of positive action. An employer, when faced with two or more candidates of equal merit for a position, may select a candidate from a group that is disadvantaged or underrepresented in the role. This is sometimes referred to as “positive discrimination” and it is only lawful in very limited circumstances. It cannot be used as a policy of automatic preference for people from underrepresented groups. Employers are not required to use positive action in tie-break situations, but the law permits it as an option.
Any positive action must be proportionate if it is to be lawful. Before implementing positive action, an employer should consider if it is possible to achieve the same aim in alternative ways, that are less likely to adversely impact others.
It’s important to note that positive action is distinct from positive discrimination, which is generally unlawful. Positive discrimination would include, for example, hiring someone solely because they have a protected characteristic, regardless of their merit relative to other candidates. Positive action, on the other hand, is about levelling the playing field and is only permissible within the strict boundaries set by the EqA 2010.
Incorrect use of positive action
In the recent case of Turner-Robson and others v Chief Constable of Thames Valley Police an employment tribunal found that it was unlawful for a police force to place a minority ethnic Sergeant into a Detective Inspector position without a competitive process. This was not positive action but unlawful positive discrimination.
Three white police officers who were interested in a Detective Inspector vacancy challenged the decision to promote the ethnic minority Sergeant by bringing a claim for direct race discrimination. They had expected the job to be advertised and to go through a standard recruitment process, but, instead, the police force moved a minority ethnic Sergeant into the role to quickly promote officers from minority backgrounds. The police force argued that this was part of their Positive Action Progression Program, designed to help minority ethnic Sergeants become Inspectors and so claimed this was allowed under the law as a form of positive action.
However, the tribunal agreed with the Claimants, ruling that they had faced direct race discrimination because they were not given a chance to apply or be considered for the Detective Inspector job. The tribunal said the force’s actions fell to be considered under section 159 of the EqA 2010 but did not meet the requirements of that section. As such it was a clear case of appointing someone to a job without the proper process, which counts as positive discrimination, not just encouragement. They pointed out that the Sergeant could have succeeded on their own merit and that the force had decided to give them the job without properly weighing if this was fair or necessary. The tribunal also noted that the force hadn’t carried out an equality impact assessment, which is a check to see how decisions affect different groups.
The tribunal went on to criticise the police force for not assessing the impact of their decision beforehand and was surprised by the lack of equality and diversity training for those who made the decision.
How to properly use positive action
Employers must be careful to ensure that any positive action is proportionate to the aim they are trying to achieve and that it does not result in unfair discrimination against others. Positive action should not provide a guaranteed advantage to individuals with a protected characteristic; instead, it should be about providing equal opportunities.
Back in April 2023, the Government Equalities Office published updated guidance on positive action, which aimed to help employers support underrepresented groups in the workplace without engaging in unlawful discrimination. The guidance explains that positive action is entirely voluntary for employers and must be justified by evidence, such as data showing underrepresentation or specific barriers faced by a group. The guidance also emphasises the importance of considering intersectionality, meaning that employers should evaluate how different characteristics, like race and gender, might combine to create specific disadvantages. And finally, employers are encouraged to document their positive action initiatives to ensure they can demonstrate that the actions are proportionate and based on clear evidence.
The Government’s full guidance on positive action in the workplace can be read here.
To conclude, implementing positive action correctly can improve equality, diversity and inclusion across a workforce, but given the risks of positive action straying into unlawful discrimination, we recommend that legal advice is sought before such measures are taken.
