There is some real confusion around the concept of positive action and many people will only see it as another form of positive discrimination. This explains the difference.

Most equality and diversity officers or specialists will have been asked to explain the difference between positive discrimination and positive action.

The truth is that there is some real confusion around the concept of positive action and most people will only see it as another form of discrimination. So let’s try and make things clearer.

Positive discrimination

This is a form of discrimination that favours someone by treating them differently in a positive way. An example might be an organisation appointing someone from an underrepresented group into a role without considering whether they have right skills for the post. Other candidates who are better qualified are passed over. Positive discrimination is unlawful discrimination.

Employing someone who isn’t the best candidate can have a number of damaging consequences. The first is that you may be placing the successful candidate at risk, asking them to carry out a role which they are not capable of and increasing their risk of stress or anxiety. You also increase risk to their employment reputation amongst colleagues, potentially creating disharmony in the workplace. Other candidates of course will feel unhappy and may make a legal challenge to the decision taken, which in itself can result in reputational and financial risk for the organisation. And finally detriment to the organisation can also come about from having employed someone who can’t deliver the product, affecting reputation and resulting in loss of income generation.

There is also a risk of consequences for others with that same protected characteristic coming into the workplace. Irrespective of the  fact that they were legitimately appointed because they were the best candidate, the experience of previous positive discrimination may mean they are judged differently by their colleagues.

Positive action

This is a form of encouragement to increase candidates for a post. The selection process for the post however is the same for every candidate and the successful candidate is appointed on their ability for the post, irrespective of race or gender etc.   

There are number of things that can be done to widen the diversity of candidates.

You can ensure the language used in the advert is inclusive and doesn’t inadvertently use terminology that might deter applications. You can also use a broad range of media for advertising, including local press, web sites, twitter and Facebook, as well as using organisations that promote equality for protected groups. In the advert, promote any family friendly policies you may use, such as flexible working and promote the use of reasonable adjustments for those with a disability. Specific campaigns that challenge social stereotypes of roles, for example the Men do Care campaign, are also a form of positive action.

The main point is that these are about attracting candidates, not bypassing or interfering in any way with the legitimate selection process.

If you think that you need some direction in undertaking positive action work, contact the Equality, Diversity and Inclusion Office for more information.

Lawful discrimination

There are times when some discrimination is lawful, however these are limited to very specific circumstances.

The first is where a candidate had disclosed a disability. If that candidate has a need for adjustments to be made to overcome the barriers created by their disability whilst undergoing the selection process, and in any future employment, the employer or potential employer must consider and implement those adjustments. Examples of this might be ensuring that all interviews for a post are held in a fully accessible office because one of the candidates uses a wheelchair for a mobility related disability. The key point to this exception, is that the candidate MUST meet the criteria for a post in the first instance. On most occasions disability should not be a barrier to their application or selection for the post, however there will be times when the nature of a disability will mean that no adjustments can be made that will allow someone to carry out the role and an example may be if the same wheelchair user were to apply for a post that requires the post holder to access remote and wild areas. Each case must be looked at on an individual basis and adjustments applied on an individual basis.

The second point at which discrimination is lawful is where a final decision has to be taken between two identical candidates. They have each gone through the selection processes successfully and have been marked identically throughout. At that point the organisation or selection panel can appoint the individual from the group that is underrepresented in the workplace. This is not an obligation but an option for the employer. The reality is that very few candidates for anything are identical and so this situation should be few and far between. However where it does occur, many organisations will invite candidates to a second interview or to make a further presentation in order to help them identify the best of the two candidates. 

In both these cases, the individuals undertake the same selection process and meet the criteria for the post.

Produced by the Equality and Diversity Office
Oct 2017

Need more help?

Joan Robertson
Equality and Diversity Officer
  +44 (0)1382 384103