‘Positive action’ in recruitment and promotion allows an employer to treat one candidate “more favourably” than another based on his or her race or another “protected characteristic”, if both candidates are “as qualified” for the role. That’s the law, as set down in sections 158 and 159 of the Equality Act 2010.
The U.K. Government’s Equalities Office guidance states (italics mine):
Positive action in recruitment and promotion can be used where an employer reasonably thinks that people with a protected characteristic are under-represented in the workforce, or suffer a disadvantage connected to that protected characteristic.
In practice it allows an employer faced with making a choice between two or more candidates who are of equal merit to take into consideration whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce.
In reality, ‘as qualified’, in so-called tie-breaker situations, is not at all clear cut. In Blackstone’s Guide to the Equality Act 2010, Rachel Crasnow QC discusses the scope for ‘positive action’ in ‘tie-breakers’ (pp. 227-228, bold mine):
The consequence of this is that there must be an objective selection process that assesses specific skills, qualifications, and abilities, but does this mean that candidates have to be qualified or suitable in exactly the same way before a choice based on under- representation is legitimate? The present view is probably not.
The Act uses the phrase ‘as qualified as’ and it was suggested by the Government in 2009 that whilst this does not authorise in any way the use of quotas, it will cover situations where candidates meet the minimum qualifications or the particular requirements for the post, in contrast to a scenario where the applications in question are identical in their qualifications, skills, and abilities.
Thus even if a candidate from a protected group had some weaknesses in areas where his/her competitor was strong, if those related to desirable rather than essential aspects of the job specification, s/he may be considered as qualified for the post. Not all recruitment exercises divide the desired characteristics of the post into necessary and preferred. So the answer to this question may require a more specific examination as to how important the skills in question are for the job
Put plainly, ‘positive action’ is discrimination (less or more favourable treatment) based on crude assumptions about ‘groups’. It is not the provision of reasonable support based on individual characteristics and needs.
And so, perhaps it’s unsurprising that though ‘positive action’ came into force in April 2011, employers have been reluctant to use it. Concerns have been raised about the risk of legal challenge, as well as other important issues, such as its potential to undermine employees’ credibility and lead to segregation and stigmatisation within the workforce.
But with a rapidly growing ‘Equality, Diversity, and Inclusion’ (EDI) industry, and fresh impetus to change recruitment practices to meet targets, ‘positive action’ based on race is becoming a reality in Britain. For example, I recently posted about universities advertising student opportunities with racial eligibility criteria. And last month it was revealed that London’s Royal Free Hospital is now requiring “interview panels to justify themselves whenever a shortlisted ethnic minority candidate is not appointed to a role”.
Some of the many legal and practical implications will no doubt become clearer as more employers begin implementing race-based policies and practices.
One issue that must be addressed is a candidate’s right not to disclose his or her racial background – and the ability to opt out from more favourable treatment based on race.
Currently, candidates have the right not to disclose their race when applying for a job. And there are many reasons why they may ‘prefer not to say’. They may not want to risk disclosing racial information that could lead to them being discriminated against in the recruitment process. In fact, some will want to feel confident that race has no role in the recruitment process – that treatment is equal regardless of race. That is my stance.
But in the drive to meet ‘diversity’ targets, I fear that overzealous HR committees and interview panels may not want to miss an opportunity for race-based ‘positive action’ – even when a candidate has chosen not to disclose his or her racial background. There might be a temptation to infer a candidate’s race and ethnicity based on physical appearance and name, and then to impose this (mis)classification for the purpose of discrimination in the selection process.
Race can be complex, and people often get it wrong when trying to guess the race and ethnicity of others (for example, mixed-race people are often seen as black – and how they identify can change over time). But that’s just a side issue. If a candidate chooses not to disclose his or her race on the ‘equal opportunities monitoring form’, then that decision should be respected and not undermined. No matter how obvious his or her race and ethnicity may seem.
Surely it is the employer’s responsibility to explain the rationale and possible benefits of disclosing personal information on ‘protected characteristics’ – including race. Then those making the appointment can be confident that candidates are making an informed choice about whether to disclose this information and potentially be considered for ‘positive action’. But even once the possible benefits are explained, some candidates will opt for non-disclosure so that race does not inform the recruitment process.
In my opinion, for as long as Sections 158 and 159 of the Act remain in force, employers must be transparent about their policies and practices that involve discrimination based on race.
And importantly, there must be an opt-out provision for candidates who wish to be treated equally and not more favourably based on their racial background. This can be through non-disclosure or a simple opt in or out statement. In the case of the former, it should be made clear that racial identification will not be inferred by proxy and used for ‘positive action’ targeting the candidate.
Candidates must have the right to equal treatment in recruitment and promotion regardless of race and ethnic background.
This article first appeared on Amber Muhinyi’s Substack. Subscribe here.
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Positive discrimination is double speak.
If you discriminate “positively” towards say a black person, you are discriminating “negatively” against a white or Asian or other person.
When black people, Jews, Asians and other peoples were discriminates against, it wasn’t called “positive” discrimination towards whites. It was called discrimination, or more bluntly racism.
“Positive discrimination” is just a way of sanitising a new form of racism.
The justification used in the US is “because slavery”. It’s almost certain the US Supreme Court will rule race-based admissions policies in colleges are unconstitutional. They’ve had them for ages – at least 30 years I think, when an earlier court judgement commented that they would probably not be needed beyond a 30 year window. They still exist – in fact they have probably increased. The “Asians” (mainly Indians and Chinese, Koreans I think) are coming off very badly, being pushed out by lower-scoring blacks in college admissions, so they have brought this case. The question is, at what point will the need to “right the wrongs of the past” disappear? The answer is of course it never will because this is nothing to do with righting the wrongs of the past (except in the minds of gullible, do-gooding middle class lefty whites) – it’s a war where only equality (or superiority) of outcome will satisfy the people attacking our civilisation. A war we will almost certainly lose.
Indeed. In the USA we call it “affirmative action”, among other euphemisms. I do understand the sentiment originally behind it, of course, but the problem is that there is no off-switch, and it ends up being like The Sorcerer’s Apprentice. Pretty soon you jump the shark, and don’t realize you have overcorrected until it’s too late. And it can also backfire on the very same people it is supposed to help.
“ And it can also backfire on the very same people it is supposed to help.”
Indeed, and I suspect there are those who use this as a divide and rule tactic, who are not actually interested in helping anyone except themselves and their cronies.
So how do we know when the shark has been jumped, albeit only in hindsight? Well, as soon as the language switches from “equality” to “equity”, it becomes quite obvious indeed.
And when they use the word “equality” they mean equality of outcome, because they claim anything less is evidence of racism or some other kind of “unjust” discrimination.
Indeed, that is what they mean.
Agree with the sentiments here, and what I think is the real tragedy of all this “discrimination” (positive or otherwise – what’s the diff) is what does it say to those who achieved their success without any of the assistance? More over, will any and all of those who are now by default under the banner of potentially benefitting from positive discrimination, wonder.. did I succeed through merit or some mysterious leg up? We’re lessoning the achievements of so many whom have already succeeded and will succeed through hard work and skill (not because your skin happens to be a certain shade). I despise this agenda, even with the best of intentions, discrimination will / is causing more problems than it’s [supposedly] solving – shock horror. I thought we’d learnt the lessons, but apparently not.
Indeed. I’m not eligible to be a “recipient” of this “help” but if I was I think I would find it patronising in the extreme.
Indeed, it is patronizing in the extreme.
If the following generations of black people feel so badly dealt with as result of their forbears slavery, they are now free to return to Africa or the country of their historical origin, but this does not seem to be happening in any great numbers. Surely this demonstrates that the harm that took place hundreds of years ago, has now been forgiven and forgotten and all races should learn to live together without predjudice and people should accept the laws and customs of the place that they choose to live in.
Totally accurate Stewart!. ” Equality Act” is a contradiction in terms, if you chose one candidate over the other for any other reason except being competent to do the job, you are being racist, sexist, ableist,ageist..etc!
If all applicants are competent of doing the job, put their names in a hat and draw out the successful person in front of them all!
That’s called fair.
And a mini statement from our Prof Fenton re ‘Bridgengate’. Comments underneath sum up the general consensus on here I’d say;
https://www.youtube.com/watch?v=lV_C9xkTT-w&ab_channel=NormanFenton
True story- a colleague was invited to a diversity event (excuse to reinforce their wokeness) run by the organisation for which we work. She was turned away when she arrived. The reason….she was white. Can’t make this sh’&t up.
Diversity only when it is convenient for the wokesters.
At the next GE almost all white voters will vote for anti-white parties..
Indeed. All the mainstream parties are anti-white.
A couple of quotes from Thomas Sowell seem apt:
“When people get used to preferential treatment, equal treatment seems like discrimination.”
“If you believe in equal rights, then what do “women’s rights,” “gay rights,” etc., mean? Either they are redundant or they are violations of the principle of equal rights for all.”
Indeed, the terms “civil rights” and “human rights” generally cover enough ground. Beware of anyone who reflexively objects to using those terms for not being specific enough, because reasons. Sometimes specificity makes sense, of course, but usually it is quite redundant (if not altogether inegalitarian).
I can recommend ‘The Diversity Delusion’ by Heather MacDonald.
This Act is the most despicable, racist and shameful piece of legislation to have been enacted by the UK. It is 100% anti MLK and is closer to Apartheid Era S Africa than a civilised and fair democracy. ‘Grouping’ human beings by the shade of their skin is ignorant beyond belief. In practice, it is terribly unbalanced and unfair against white people. Take the NHS for example, compared to the ‘fair’ (i.e. representative of the split of UK population), so called white people are woefully under-represented. To redress this, can you imagine the NHS conducting a ‘whites only need apply’ recruitment campaign? That would be just as wrong. Treat people as humans first and foremost – repeal this crazy law immediately and, as a country, follow the MLK way of thinking.
You know which is the most “undiverse” group of people and yet you never hear about any policies to make it more diverse?
Billionaires.
Is it legal for international management consultants to instruct their in house recruiters not to shortlist any men – regardless of qualifications? This is what they are doing.
What is equal about prioritising one group over another? that is the very opposite of equality, more topsy turvy upside down from our Government. Why isn’t competency the decider on who is best for a job?
This Government and HR departments throughout the country are racist, they are racist against white people, against men and against those who are fully able bodied and hetrosexual. In other words a white male who has no disabiliy and has a partner of the opposite sex, is, regardless of qualification and suitability for a job, is the last candidate that a company would choose. This is discrimination, racism and sexism. This discrimination is actively promoted and supported by the Government and civil servants. Think if the same “equality” discrimination was applied to the afore mentioned groups there would be an outcry and human rights cases flying left, right and centre. Why then is it ok to select a particular group for active discrimination and get away with it?
This is once again about division because divided people will fight each other, whilst those who create the divison accrue more power and control over us. They the Government and the civil servants are the enemy, not the person who is a different race, sexual persuasion, gender, or other characteristics this Government is trying to create disharmony in.
The white ‘go along to get along’ professional and managerial classes can hardly complain if they are discriminated against from here on in
I’ve interviewed and recruited staff countless times. I’ve never seen an instance where two candidates were 100% identical. Even if they have the exact same qualifications, with the exact same grades, from the exact same institutions, and have the exact same prior experience, and have the exact same score on a practical test. At that point, they are judged on engagement with the interview process, knowledge of the company they’re seeking employment at etc. Pretending candidates can ever be 100% equal is just an excuse to allow leftist racial discrimination and equality to be used.
What is descibed here is racial prejudice and supported by legislation. This in any logical situation should be eliminated by the race relations act. It is no wonder in some major cities the native indigenous population is becoming the discriminated against minority. I have nothing against black or Asian people or any other race or group but employers should be free to appoint their choice of the person most suitable to do a good job without considering their race.