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Positive discrimination in the workplace

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Defending claims of indirect discrimination - the objective justification defence

The term positive discrimination refers to the favouring of an individual who holds a protected characteristic, affording them preferential treatment over others, simply because they possess said characteristic. Positive discrimination is not legal, and any unfavourable treatment by an employer relating to a protected characteristic would constitute a breach of the Equality Act 2010.

The Equality Act 2010 outlines nine protected characteristics, which include: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

An example of positive discrimination can be seen following a reported case in 2019, during which it is understood that a female RAF Group Captain resigned after informing her Captain that the policies being followed penalised white men. It was reported that the disclosure sparked an inquiry, which was conducted by the Ministry of Defence and found that the female officer had faced unreasonable targets, to increase the diversity and proportion of women and individuals from ethnic minority groups in the RAF. It is understood that the inquiry found the pressure to meet those targets led to unlawful, positive discrimination.

On the other hand, although positive discrimination is generally prohibited, it is important to note that there can be times when it may be deemed reasonable for an employer to engage in positive action.

For example, it may be found reasonable for an employer to justify only hiring women, if the duties of the employment involved working at a women’s shelter or refuge. In such circumstances, it may  be considered unreasonable to employ prospective male candidates, given the vulnerable nature of those involved.

What are the consequences of positive discrimination at work?

Where an employer treats an employee more favourably because of a protected characteristic, they can find themselves potentially facing a claim being brought against them pursuant to the Equality Act 2010 in the employment tribunal for a claim of unlawful discrimination. It is important to know that there is no qualifying period of service for an employee to be eligible to bring a claim of discrimination, however a claim must be brought within three months less one day from the earliest act of discrimination relied upon in order to be deemed ‘in time’, in accordance with statutory time frames

How can we help?

If you feel that you have been affected by positive discrimination, and would like to obtain some advice on the matter, you can speak to our experienced and specialist employment and discrimination team on 0161 696 6170.

By Eloise Stirrup, graduate paralegal