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Treating someone differently because of a protected characteristic is discrimination, regardless of whether it’s positive or negative. Positive discrimination is complicated, especially because positive action is a similar but separate measure in place, aiming to improve workforce equality.
In this article, our solicitors will outline what positive discrimination is and when it’s deemed illegal in the workplace.
For more information, please visit our discrimination page. Alternatively, to get in touch, please send our solicitors an email at [email protected] or call us on 020 3007 5500.
What is positive discrimination?
Positive discrimination is the act of a company favouring someone less capable because of a protected characteristic they possess to fulfil a company quota.
Positive discrimination can occur at various stages in a company, including hiring, firing, promoting or how the company generally acts with its employees.
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Who can be a victim?
The Equality Act 2010 prohibits any form of discrimination in the workforce against someone who has a protected characteristic.
Therefore, positive discrimination can apply to someone with at least one of the following characteristics:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Race
- Sex
- Religion or belief
- Sexual orientation
Positive discrimination examples:
As highlighted earlier, positive discrimination can take place in several circumstances, some of which include:
1.Two people are interviewing for the same job. One of the applicants has a physical disability and is less qualified for the role. Still, the company has a quota to employ more people with a disability. In this circumstance, if the company decides to hire the applicant with a disability, it can be classed as positive discrimination.
2.A company is looking to promote someone to become the manager of a branch. However, currently, all the other branch managers are women. There are two contenders for this promotion, one male and one female. The female has been at the company longer and produced better results. However, the company decides to give promotion to the male contender.
3.A company is having to make a few redundancies. One of the possibilities is someone who is part of the LGBT+ community and has been underperforming. However, the company decides to make a better-performing employee redundant to keep members of the LGBT+ community in their workforce.
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Is positive discrimination illegal?
It’s illegal to treat someone with a protected characteristic that isn’t as qualified more favourably than someone who is more skilled and doesn’t have a protected characteristic.
However, you may then ask how you can diversify your workforce without breaking the law. In 2011 positive action became legal to encourage the recruitment and promotion of minorities in the workplace.
What is positive action?
Positive action is when a company is deciding whom to promote between two equally qualified candidates. In this circumstance, an employer can legally decide to employ/promote the individual with a protected characteristic.
Only when a less qualified person who possesses a protected characteristic is treated favourably does it become positive discrimination. For more information, visit our page on positive action.
Why Contact Britton and Time Solicitors?
If you have a positive discrimination matter and are looking for legal support, our discrimination solicitors can help.
Our award-winning solicitor’s guarantee:
- A fair resolution to your case.
- Clear guidance on your position and available options.
- Expertise in dealing with complex discrimination matters.
- Award-winning service.
For more information, please visit our discrimination page or call one of our solicitors directly on 020 3007 5500.
Positive discrimination at work
So if I have two candidates, both equally qualified, I’m allowed to use race as my final deciding factor….? Does it only work in favour of nonwhites, or can I specifically choose a white person over a nonwhite person, if they are otherwise equally qualified….? How is that not racism? If it only works in favour of nonwhites… again, how is that not racism?
How would one prove that a company is doing this? Several times I have felt highly qualified for a role and not even received an interview. What must I be doing wrong?
What classifies as positive discrimination versus illegal discrimination?