Positive action – lessons learned (or not...)

Positive action – lessons learned (or not...)


18th September 2024

As Homer Simpson so eloquently put it, “Trying is the first step towards failure”. 

If you’ve ever had the pleasure of discussing your positive action initiatives with an employment lawyer, you will know the difficulty that arises when good intentions come up against positive discrimination laws. Often employers feel that even trying to do the right thing is the first step towards failing. 

If you are unfamiliar with the concepts of positive action vs positive discrimination, we would encourage you first read Natasha’s excellent article on the topic.

UK Police

18 months ago, Natasha wrote about Cheshire Police’s ultimately unlawful attempt to implement a positive action plan in relation to appointing police constables. It seems the lessons from this were not learned as, more recently, Thames Vally Police also fell afoul of positive discrimination laws.

In their attempt to increase the representation of officers from minority ethnic backgrounds in senior positions, Thames Valley Police promoted an officer from a minority ethnic background into a vacant Detective Inspector role without undertaking any form of competitive assessment exercise. This was despite other officers, who did not share that officer’s protected characteristic, having expressed an interest in the role. This clearly went far beyond the boundaries of positive action, putting officers who did not share the relevant protected characteristic at a disadvantage when the police force could have taken alternative action to encourage the representation of Detective Inspectors from minority ethnic backgrounds. 

In a tough day at the Employment Tribunal for Thames Valley Police, the Tribunal considered it a "cavalier approach" that no equality impact assessment was undertaken as part of the promotion decision and expressed astonishment at the lack of equality and diversity training received by the decision makers.

Politicisation 

What adds difficulty to this already complex issue is that the conversation is increasingly becoming a hotly debated political issue.

Last year, the US Supreme Court ruled that the “affirmative action” policies of Harvard University and the University of North Carolina were unconstitutional. The universities had implemented admissions programmes that gave an advantage to certain students based on their race but this was found to violate US equality legislation. This was a controversial decision that many commentators have attributed to the political make-up of the US Supreme Court.

Closer to home, and the above cases, Labour said in 2020 that they supported legalising positive discrimination in the Met Police to speed up diversifying the force, a stance that was backed by the Met at the time. Although such plans did not make it into the Labour manifesto, the increasing political nature of this question may, in time, force the Government's hand on the issue. 

A risk averse employer may therefore decide that doing nothing is the safest choice. But is that an option either?

The Labour Government has mooted the idea of requiring businesses to publish gender pay gap action plans. Combined with potential ethnicity and disability pay gap reporting, employers will be under increased scrutiny about what they are doing to proactively increase diversity in their organisation. The Parker Review is similarly asking tough questions about the makeup of UK boards, and what businesses are doing to address diversity issues at the top levels of their organisations. 

Finding the Balance

Any action plan to address these issues will almost certainly involve some degree of positive action. So how can a business do this without tripping into positive discrimination?

It seems the biggest error organisations make is implementing positive action plans without stress testing them first with the right people, including not just legal, but comms, HR and PR too. Diversity of thought in creating and implementing these schemes is needed to cast light on the problematic areas. 

Further, the key principle to bear in mind when considering positive action plans is, “How can I level the playing field for underrepresented groups in a way that doesn’t disadvantage people from outside those groups?” A few examples of initiatives an employer could reasonably take include:

  • engaging with networks for underrepresented groups, including promoting job vacancies through these networks’ channels;
  • attend events targeting certain groups to inform underrepresented groups about work opportunities available to them; and
  • provide internal training for HR and recruitment teams regarding the need to recruit a more diverse workforce and the steps that can and cannot be taken.

Although finding the balance can be difficult, it is not impossible. However, there is no silver bullet that means your initiatives will fall on the right side of the line. As the legal and political landscape change the goalposts on this topic, the most important advice is to take your time, get good advice, and regularly review the situation.  

If you do that, a well thought out programme can be a powerful tool in ensuring your organisation is representative of wider society. 

As always, however, the devil is in the detail.