The difference between Positive Action and Positive Discrimination

Diversity is a buzz-word the whole organisation has come to know and appreciate. It is something that affects everyone and every role in a company, including that of recruiters; whether it be an in-house operation or partnership with an agency. Recruiters will play a valuable role in helping companies achieve wider organisational targets around diversity and inclusion, like the ones we have seen from the BBC, pledging that half of their workforce will be women by 2020. Yet there is one guiding principal that must be considered in implementing initiatives to make the workplace more diverse: positive action is legal, positive discrimination is illegal.

“A key difference between positive action and positive discrimination is that positive action is lawful, whereas positive discrimination, generally, is not.”*

In unpacking this statement and understanding its application in the world of business, I thought it was helpful to provide some examples of both positive discrimination and positive action:

It can be a thin line between positive discrimination and positive action, but it is important to be aware of the differences and avoid using positive discrimination tactics through ignorance of the law:

Positive Discrimination examples

• Moving someone through the recruitment process on the grounds of the nine protected characteristics – race, disability, age, gender, religion/belief, marital status, pregnancy, sexual orientation, gender reassignment
• A quota to employ people from under-represented groups
• Favouring people from under-represented groups at any stage of the application process, such as removing the need for a certain stage for any group of people
• The Equality and Human Rights Commission’s Employment: Statutory Code of Practice gives the example: “An LLP seeks to address the low participation of women partners by interviewing all women regardless of whether they meet the criteria for partnership”.

On the other hand, Positive action is often deployed when an employer thinks that people with a certain protected characteristic suffer a disadvantage, connected solely to that characteristic, or are disproportionately under-represented in the organisation. The employer can then use positive action in order to enable, or encourage people with the protected characteristic to participate in an activity – in this case, apply for a certain role.

Positive Action examples

• Strategy to achieve a more balanced workforce using positive action, entirely voluntarily, to recruit, or promote someone with a protected characteristic providing:
• The person is as qualified as others
• Employer doesn’t have a policy of treating persons with a protected characteristic more favourable than persons who don’t have this characteristic
• The favourable treatment is a proportionate means of achieving the strategy
• Encourage more applicants from under-represented groups by advertising vacancies to a specified audience
• Set targets for workforce make-up to achieve a balanced workforce, such as the BBC have done
• Make a public statement in recruitment advertisements ensuring prospective applicants are aware that your organisation welcomes applications from the target group
• The EHRC suggests companies and executive search agencies creating networks for executive women who aspire to non-executive board positions and using these to identify potential candidates for board level roles.

Using these guiding principles, organisations can instruct their recruiter, whether that is in-house, or a partnership with an agency, to meet diversity targets in support of the company’s overall diversity commitments. However, the organisation must ensure they are clear and realistic targets and ensure that their recruiter does not use positive discrimination tactics to secure candidates. It is important to keep this principal at the front of mind throughout the recruitment process. From attracting talent to moving through the application process, in order to comply with the law and also provide a fair recruitment process for all applicants and maintain a positive employer brand.

*https://www.xperthr.co.uk/faq/what-is-the-difference-between-positive-action-and-positive-discrimination/108522/