What is Positive Discrimination in the Workplace?

In today’s business and social climate, it’s important to embrace diversity to ensure your business can benefit from a wide range of global talent.

Improving diversity in your organisation has many benefits. However, you need to be wary as you could accidentally fall into the realm of positive discrimination.

It can be a serious issue, so if you need immediate help you can refer to our 24/7 employment law services. The rest of our guide explains what it is and how your business can avoid it.

What is positive discrimination in the UK?

It’s the practice of recruiting a person because he or she has a relevant protected characteristic rather than because they are the best candidate.

Whilst this phrase is typically reserved for the recruitment phase, it can also apply during employment when making promotion decisions.

Positive discrimination UK laws

Is positive discrimination legal? No. Though there are occasions where it’s lawful to require a job applicant or worker to have a particular protected characteristic. But it’s rare and is likely to fall into the category of an occupational requirement.

However, positive action is legal—it’s common for businesses to become confused between the two. The Equality Act 2010 allows you to treat an applicant or employee with a protected characteristic more favourably in connection with recruitment or promotion than someone without that characteristic, providing they’re equally qualified for the role.

If you still need a little help, below are some positive discrimination examples so you can see how this applies in practice:

• Hiring a female candidate in favour of a more suitable male candidate simply because you worry there is a distinct lack of females in your organisation. That’s positive gender discrimination.
• Promoting an underqualified employee to a managerial position as they’re considerably younger than the rest of the managerial team. That’s positive age discrimination.

The effects of positive discrimination in the workplace

These can be significant and may have a detrimental impact on morale. For example, existing employees could become dissatisfied if they feel hiring and promotion decisions are unfairly based on protected characteristics rather than skills and experience.

There’s also the risk that unsuccessful job applicants could lodge a claim for discrimination at an employment tribunal. This is if they feel they’re unfairly overlooked in favour of another individual due to a protected characteristic.

To avoid this outcome, you should understand that while there’s a difference between positive and negative discrimination, they are unlawful for different reasons.

To prevent positive discrimination from occurring, it’s important that you based decisions on recruitment and promotion on pre-determined criteria rather than protected characteristics.

If you find it hard to differentiate between applicants during the recruitment phase, a scoring system may prove a useful way to compare individuals’ suitability.

Need our help?

Peninsula offers expert advice on positive discrimination. Our teams provide 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts.

Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.