In our 2003 report on the current law and practice on diversity1, we predicted that UK organisations would become increasingly active in pursuing diversity initiatives.
We also suggested that the positive action measures they implemented risked putting them in breach of UK anti-discrimination law.
Four years on and the contradictions between what employers are doing to promote diversity and the requirements of UK and EU anti-discrimination law are becoming starker. Ironically the more imaginatively organisations try to enhance diversity the more likely they are to risk breaching anti-discrimination law.
THE BUSINESS CHALLENGE
Diversity strategies have reached tipping point and few businesses want to be left behind. However, the challenge of creating a genuinely inclusive workplace is not met by policies that are vague, cosmetic or downright contradictory. ‘Diversity-speak’ can become a cloak for incoherent, inconsistent and unattainable objectives, and thus risk defeating the objective.
THE LEGAL CHALLENGE
The perils of positive action
The distinctive vagueness of much diversity strategising can give employers a false sense that ‘anything goes’ if it is in pursuit of equality goals and targets. There is not enough awareness of the legal risks that come with innovating.
The key issue is that diversity thinking encourages employers to accommodate differences. This means that strategies often include positive action measures designed to make workplaces more representative. What is easy to overlook is that the scope for lawful positive action in much of UK and EU anti-discrimination law is very narrow2. For example, the main positive action provisions in the Race Relations Act 1976 provide only for targeted training and encouragement, and only where members of the racial group in question are under-represented in work of ‘a particular kind’.
The paradoxical consequence is that the more energetic employers are in promoting diversity, the more they risk falling foul of the main prohibitions on discrimination in the Sex Discrimination Act 1975, Race Relations Act 1976, Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003. Rather than being praised for promoting equality, progressive employers could find themselves liable for unlawful discrimination.
The Government’s own diversity strategy for the Civil Service, Delivering a Diverse Civil Service, A 10-Point Plan3 illustrates the problem. It advocated positive action measures that are potentially legally questionable. The plan suggested that positive action criteria and targets on the attraction of diverse candidates be incorporated into procedures for awarding, managing and renewing contracts with search consultants or recruitment advertising agencies (page 9). It also proposed ‘identification and accelerated development of talented people from under-represented groups’ for promotion to the Senior Civil Service (page 11). Yet steps like these could well put employers in breach of anti-discrimination law by going further than the permitted categories of positive action.
The perils of legal complexity
The risks are worse because the law has become yet more complicated since our review in 2003. First, the law itself now gives mixed messages about equal treatment and positive action. On the one hand, the Disability Discrimination Act 1995 is based on a positive discrimination model, and new duties on public authorities steer employers towards taking positive action. On the other hand, there remain stringent limits on the kinds of positive action that are lawful. Thus simple strategies such as direct-fulfillment of gender or ethnicity targets remain unlawful. Also, the complexity and changeability of anti-discrimination law make it hard for employers to extract clear, consistent and coherent messages about how they, or their employees, should behave.
The law on discriminatory harassment is a case in point. There are now so many different ways that a person can be harassed unlawfully (on grounds of age, belief, disability, ethnic origin, gender reassignment status, national origin, religion, sex and sexual orientation) and the definition of harassment is so unclear, that extracting workable conduct rules is a challenge. Employers, particularly those in the vanguard of diversity initiatives, deserve legal clarity to support their aims.
There are examples of innovations by employers in pursuit of diversity running into trouble. Avon and Somerset Constabulary had to abandon a ‘pioneering positive action campaign’ when complaints brought to light that it contravened the Sex Discrimination Act 1975 and the Race Relations Act 1976. Gloucester police faced criticism and potential claims under the Race Relations Act 1976 over the ‘random de-selection’ of 108 white men. A media furore followed the launch of Rare Recruitment, an agency specialising in placing ethnic minority people. The Prison Service has recently been criticised because diversity considerations apparently influenced a relocation decision. These are just a few examples of a growing and disquieting trend.
- Employers need help to avoid adoption of elements of diversity thinking that risk ending up in bruising publicity and expensive litigation. High level strategic thinking is required to ensure proper management of legal risk.
- There is a clear technical case for more space to be made in law for voluntary positive action. Plans for a Single Equality Act in the wake of the Discrimination Law Review provide an opportunity for employers to join the debate. Any reform must respect the limits of EU law. It should, in any event, only permit positive action that is proportionate and justifiable, in particular following robust analysis of what works in practice. Ultimately the aim should remain the creation of a society that operates fairly without the need for special measures of this kind.
These findings have implications for all UK businesses.