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Positive Action – why employers should dare to dream

Racial tensions have never been far from the headlines in the past year.  The killing of George Floyd, the Black Lives Matter movement and the stark difference in treatment of groups of rioters in the USA have underlined how far society still has to come in moving towards equality.  This year’s Martin Luther King Day is therefore an especially poignant time to reflect on progress, or the lack of it.

Discrimination, clearly, remains an issue.  I have written previously extolling the virtues of equality and diversity in the workplace, but there is still much work to be done.  The UK enacted the Equal Pay Act in 1970 with a single, simple goal in mind.  However, over half a century later Employment Tribunals remain faced with many thousands of claims for equal pay, never mind the more high profile cases seen at the BBC in recent years.  Are employers taking issues of diversity seriously enough?  The answer in a disappointingly high number of cases is no.

The question of how to increase diversity in the workplace is a thorny one.  Ideas of quotas tend to polarise opinion and many employers are apprehensive about being seen to ‘positively discriminate’.  However, the law provides employers with an answer to their concerns in the form of the positive action provisions of the Equality Act 2010.

Put briefly, this allows an employer to take proportionate steps in order to counteract a disadvantage or under-representation linked to a Protected Characteristic.  Positive action is extended to recruitment and promotion specifically as, in effect, a tie-breaker between candidates who are equally qualified. 

Under-representation is a root cause of a considerable amount of discrimination in the workplace.  Where a certain group is in a minority, it tends to be easier for that group to be treated less favourably, be subjected to ridicule and be marginalised in terms of opportunity, whether that be for training, promotion or recruitment in the first place.  It stands to reason that steps to reduce under-representation are a key weapon in the quest to minimise discrimination and increase workplace diversity.  Positive action is, therefore, a way quicken progress towards this. 

Some of the more forward-thinking clients of mine have embraced positive action.  Taking charities as an example, positive action has allowed many to transform their Boards, for example, from being ‘pale, male and stale’ to being constituted from diverse backgrounds and therefore in line with the wider society in which they work.  No employer who has done this has reported to me that they regretted doing so, such are the obvious benefits of diversity.  For those employers who have yet to embrace diversity, considering taking advantage of the law on positive action could amount to a fast-track route in to the 21st century.

If a free consultation with our expert team on any HR or employment related issue would be of help to your business in moving forwards into what we hope is an optimistic future, please don’t hesitate to reach out to us legal@lexleyton.co.uk

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