An Inquiry into allegations of discrimination against white males in the RAF has highlighted some of the challenges faced by organisations keen to actively redress historic imbalances and promote diversity and inclusion. In seeking to increase numbers of women and minority ethnic pilots to achieve ambitious targets the RAF is said to have crossed the line between lawful positive action and unlawful positive discrimination.

Taking action which doesn’t amount to more favourable treatment of another group is lawful – for example, advertising vacancies in publications aimed at specific groups - but treating people, who share a protected characteristic, more favourably than others who don’t share that characteristic (usually known as positive discrimination) is generally unlawful. However, there are some exceptions:

For example proportionate action can be taken where people who share a protected characteristic:

• suffer a disadvantage connected with it;
• have a specific need which differs from others; or
• are disproportionately represented within an activity.

An example of action falling within this exception, set out in the Equality and Human Rights Commission’s Statutory Code of Practice, is “reserving places on training courses for people with the protected characteristic, for example, in management”. The government’s new guidance for employers on positive action, published in April this year, gives a similar example: “providing training opportunities in work areas or sectors for the target group, for example work placements”.

In 2020, the RAF decided to put forward over 220 female and minority ethnic service personnel, from a pool of candidates, for training. In some cases, that meant no white male candidates were put forward. At the time it was believed that, as this was an opportunity for training, this was lawful positive action.

According to the Inquiry, carried out by the Ministry of Defence in 2022, it became clear that, whilst the initiative was referred to as training, in reality, being put forward for the training meant an offer of employment for the individuals, so was in fact part of the recruitment process. This gave rise to the discrimination as, when making decisions in the context of recruitment or promotion, the positive action provisions are only permitted in a tie-break situation where the candidates are of equal merit and the organisation doesn’t have a general policy of treating people who share a protected characteristic more favourably.

Since being put forward for the training was part of the recruitment process, positive action in the form of putting candidates forward for training based on their protected characteristic, was unlawful discrimination against the white males in the RAF, according to the legal analysis shared with the Inquiry.

The Inquiry’s findings highlight the need for organisations planning on taking positive action, to take care to ensure that they rely on the right exception to the prohibition on unlawful discrimination. If they do not, they could face claims from unsuccessful candidates. The government guidance is aiming to shed some light but there is no doubt this is a tricky area of law to navigate. In borderline cases, legal advice is sensible.