With D, E and I high on the corporate agenda this case illustrates how important it is to take care when using the language of, or actually taking, positive action.

The claim was made by an candidate for the role of People Lead who alleged that, during an interview, senior managers told him that the company wanted to hire “fewer white men”. When the candidate was not appointed to the role he claimed that decision was discriminatory as it was taken on the basis of his sex and/or race because he was a white male.

On the facts, the tribunal decided that whilst the manager had said something to the effect that the company hoped to achieve a position where there were fewer white men as a proportion of the workforce, that did not mean the organisation intended to achieve that objective in an unlawful, discriminatory way and so the claimant's claim failed.

Although the employer was successful in this instance, the case highlights how important it is to take care when describing corporate D, E and I aspirations in order to avoid misunderstandings and, in some instances, claims – and this extends to making sure that your managers on the ground understand where the boundary lies between lawful positive action and unlawful discrimination.

In deciding whom to appoint to a role, treating job candidates differently because of a protected characteristic is generally unlawful unless the “tie-break” exemption applies. This exemption allows the employer to choose the person with the protected characteristic over the other candidate provided the it reasonably believes, in relation to its workforce, the following requirements are met:

  • The candidate to be appointed has a protected characteristic which is underrepresented; or
  • People who share that characteristic suffer a disadvantage in connection with it 

If they are, the tie-break can be applied, but only if the candidates are equally well-qualified, it’s proportionate to do so and the organisation does not have general policy of favouring persons who share that protected characteristic. This is quite a limited exemption, as explore in my previous blog: Take care when taking positive action....... (via Passle)

The danger is, of course, that when faced with organisation-wide objectives which may be expressed as aspirational targets, hiring managers are tempted to pursue short cuts to deliver diversity (not least where that aim is built into personal, annual objectives) in circumstances where the requirements for the tie-break don’t apply. 

The pursuit of a more diverse workforce is, of course, an area of focus for many employers and there are myriad ways to seek to achieve this – including giving thought to where you advertise posts, initiatives with schools and further education colleges, apprenticeship schemes and so on. In tandem with this, more employers are looking at the extent to which they can use the positive action provisions in order to effect change. It’s vital, however, when seeking to make positive changes in workforce make-up to reflect wider society, that organisations make sure that initiatives stay on the right side of what is lawful.