Being Conscious of Unconscious Bias

When implemented correctly, diversity & inclusion as a strategy aligns business goals whilst reducing organisational risk, improving decision making and driving growth. When done as a token gesture, it risks embedding positive discrimination into a business. 

So, can positive discrimination ever be lawful? 

This is very complicated and easy to get wrong, whatever the intention. It is lawful under section 158 of the Equality Act for an employer/organisation to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic. There are separate provisions allowing positive action in relation to recruitment and promotion in limited circumstances, which are contained in section 159 of the Act. This details positive action which is lawful and includes: 

• Enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;

• Meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or

• Enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.

This means an organisation can encourage people from disadvantaged groups to apply for work and can provide training to help equip them for that particular work, but the decision on whom to select must be made on merit alone, except in circumstances where the candidates are ‘as qualified as’ each other and s.159 applies.

This means that an organisation that can evidence that employees from a particular group are under-represented at the management level could run a management training course targeted at (but not exclusively available to) employees from that group.  It is acceptable to suggest that it is good practice to have a diverse interview panel, as to do so will assist in combating unconscious bias in the interview process, but this is not the same as positive discrimination. The organisation must not favour candidates from that group at the expense of other candidates unless they feel that a specific case warrants recruitment under the s.159 exemption set out above. This is no easy task: It must be done on a case by case basis, and cannot be justified on lack of representation, perceived injustice, or documented societal inequality alone.

Cheshire Police tried recently to use the s.159 exemption and lost a subsequent Employment Tribunal claim brought by a white, heterosexual male who successfully argued that he had suffered discrimination. This case illustrates well how Employers cannot use this exemption in any but the most specific circumstances. Cheshire Police had good statistics about their workforce, particularly diversity and representation, but still failed to defend their use of positive discrimination.

If you want to positively enhance the diversity of your workforce to benefit from the positive outcomes that a range of experiences and perspectives brings to an organisation, without positive discrimination and unwitting outright discrimination, please contact Dragon Argent’s Employment Law team for advice.

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