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Farrer & Co | Diversity Challenge

Last week's news was dominated by the BBC's depressing revelation that it pays its female employees woefully less than their male counterparts (see my colleague Katie Lancaster's article #notonthelist). This has prompted much discussion and debate about equality in the workplace and made me think in particular about the importance of diversity and the challenges that are often faced by organisations in ensuring that their workforce reflects our richly diverse and multicultural society.

This issue is not confined to gender inequality, but also extends to thinking about providing opportunities for all those with protected characteristics, which as a reminder also includes age, disability, race, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation. The BBC's disclosure of its employees' pay is a salutary reminder to employers to think about the demographics of their own businesses at a time where inclusivity is paramount. Employers must however remain aware of the distinction between positive discrimination and positive action and I thought it might be helpful to provide a quick recap.

Positive discrimination

Positive discrimination favours a person from a particular unrepresented or disadvantaged group solely because they come from that particular group, where merit is not featured. An example of positive discrimination is setting quotas to recruit people solely because they come from a particular group. This type of discrimination is unlawful in the UK.

Positive action

The Equality Act 2010 contains provisions concerning lawful "positive action" which applies where those who share a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented. Employers can take certain actions to address these problems without opening themselves up to discrimination claims brought by people who do not have the relevant characteristic. Employers are under no obligation to take positive action, although they do have a duty to make reasonable adjustments for disabled people.

Examples of positive action include:

  • Setting targets for increasing participation of the targeted group.
  • Offering training, such as leadership development courses to those who are under-represented in senior management roles.
  • Working with local school and colleges, for example, giving careers talks.
  • Inviting students from groups whose participation in the workplace is disproportionately low to spend time with the organisation. For example, as a Firm we work with an excellent scheme called IntoUniversity (which offers a programme to support young people from disadvantaged backgrounds to attain a place at university), by providing work placements and mentoring.
  • Providing buddying or mentoring.

Taking positive action in recruitment and promotions is also permitted under the Equality Act, but it must be handled with particular care: the candidates must be of "equal merit"; the employer must "reasonably think" there is an under-representation; and the action must be a proportionate means of achieving a legitimate aim.

Broadening the diversity of your workforce is no mean feat and will not be solved with a quick fix. Employers should ensure that they are not 'positively discriminating' and any positive action to provide opportunities for those from disadvantaged groups should be based on merit and not merely a box ticking exercise. However, reducing the ever increasing disparity between the privileged and disadvantaged can start in the workplace, with employers providing opportunities to those who do not necessarily fit the company 'blueprint'.

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