Understanding positive discrimination

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Positive Discrimination is defined as treating someone more favourably because they have a “protected characteristic” (PC). The PCs are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. The law generally forbids positive discrimination except in some very specific circumstances.
In employment, there are three main exceptions to the general rule of positive discrimination being unlawful. The exceptions are: occupational requirements, positive action, and where there is a law that specifically allows or requires positive discrimination.

Occupational requirements

This exception is available where, due to the nature or context of the work, having a particular PC is an occupational requirement. Examples of occupational requirements that might apply include:

Occupational requirements are only acceptable if they are a proportionate way of achieving a legitimate aim. The employer will need to balance a number of factors to determine whether the action to be taken is ‘proportionate’ – these factors include considering the seriousness of the disadvantage to be addressed and by how much the PC means the need is different, then what is the action that would least impact others? Minimum change for maximum benefit.

Positive action

Positive discrimination is not to be confused with positive action. Positive action is lawful.

This is when an employer acts to assist employees or prospective employees or workers who share a specific PC and are disadvantaged, have particular needs, or are underrepresented in the workplace.

Employers may benefit from a wider recruitment pool of talented, skilled, and experienced candidates.

The primary differences between positive discrimination and positive action are that the latter is action taken to benefit those from one particular protected group and does not involve less favourable treatment of those from another; or is action which eradicates discriminatory policies or practices. Positive action is not usually required of employers. However, there may be instances where there is a duty to do so.

For example, employers are obliged to make reasonable adjustments for disabled people and therefore the employer treating the disabled person more Overall, it is always important for employers favourably than a non-disabled person would not usually be unlawful.

If an employer reasonably thinks that people with a particular PC suffer a disadvantage connected to it, or simply have different needs to fully participate in the workplace, they can take action which is aimed at enabling or encouraging the affected to participate or otherwise minimise the effect of their PC.

An example given by the Equality & Human Rights Commission (EHRC) is where an employer’s monitoring data on training shows that their workers over the age of 60 are more likely to request training in advanced IT skills compared with workers outside this age group.

The employer could provide training sessions primarily targeted at this group of workers. Positive action has the potential to benefit the employer as well as the recipients. Employers may benefit from a wider recruitment pool of talented, skilled and experienced candidates; a more dynamic workforce capable to responding better to challenges; and better understanding of a more diverse range of customers, which would bring in more business.

Other Statutory provisions requiring or allowing discrimination.

We do not have space to consider them all here, but there are several legal provisions that require or allow “discriminatory” treatment to take place; for example, in the context of certain educational appointments, national security, protection of women (e.g. around pregnancy). Overall, it is always important for employers to consider the legal justification for any proposals that may have an impact on staff with particular protected characteristics.