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Stressed Black Man At Desk

Black Lives Matter in the jobs market

Benjamin Croft discusses what positive discrimination measures are available to help employers redress racial discrimination in the jobs marketplace

Posted on 12 June 2020

“Everything now, we must assume, is in our hands; we have no right to assume otherwise. If we do not falter in our duty now, we may be able, handful that we are, to end the racial nightmare, and achieve our country, and change the history of the world”
James Baldwin

It certainly feels like change is in the air. The response to George Floyd’s death has placed a renewed spotlight upon the racism endemic within our societies, economies and institutions. 

Suddenly transformation takes place at a dizzying pace: the dissolution of the Minneapolis police, mass-culling of historic TV programmes featuring racist stereotypes, colonial-era statues being consigned to the deep, creating optimism for further, more far-reaching positive changes. 

It is crucial to not to get too far ahead of ourselves, allowing the momentum to be dissipated by the sheer number of targets, and for the engine of change to run into the ground. 

As a number of commentators have indicated, of foremost importance is to address the police use of excessive force on Black people, in the US, but also in the UK.  Here, it must be remembered that Black people are three times more likely to be arrested than White people

But it is still imperative to look at the wider issues affecting many ethnic minority groups, including systemic racism and the inequality of economic opportunity. 

For example, it is indisputable that certain ethnic groups earn less and suffer higher rates of unemployment than White people. This too has been brought to the fore by the COVID-19 epidemic, with ethnic minority groups disproportionately affected by the disease, potentially as a result of such inequalities.

Despite the existence of race equalities legislation dating back over 40 years, shockingly the levels of discrimination in employment remain unchanged according to many indicators.  

Have we been too timid? Is it time to revisit the strategies aimed at addressing these inequalities in employment? The legislative framework – which has been criticised for its restrictiveness – is governed by EU law - does Brexit give the opportunity to take a more muscular approach to this pervasive problem?

One tool which has received more prominence in the US is that of “affirmative” or “positive” action, which has been defined as the “use of special measures to assist members of disadvantaged groups in overcoming the obstacles and discrimination they face in contemporary society”.

This can be contrasted with “positive discrimination” which involves “preferential treatment to benefit members of a disadvantaged or under-represented group who share a protected characteristic, in order to address inequality”.

The ability of employers to take positive action in the EU is circumscribed by Article 5 of the Race Equality Directive 2000 which provides that Member States can “[maintain] or [adopt] specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin”. 

In the UK, this is reflected in ss158 and 159 of the Equality Act. S158 provides that where an employer reasonably thinks that it is necessary to tackle under-representation, they can take action that has the aim of overcoming or minimising the disadvantage, meeting differing needs, or enabling or encouraging participation of under-represented groups, but only so far as such measures are ‘proportionate’. 

S158’s application extends beyond employment and was recently successfully relied upon by a housing association in a claim that it had discriminated against non-Orthodox Jewish applicants by allocating social housing only to members of the Orthodox Jewish community. 

The High Court found that the housing association had been justified in taking "positive action" because members of the Orthodox Jewish community suffered real and substantial disadvantages and had different needs to persons who did not share the protected characteristic of their religion. 

It is notable that the measures envisaged by s158 could be characterised as “soft”, for example, publishing job adverts in publications popular with particular BAME groups, but do not say anything about whether an employer can simply consider an applicant’s race as a factor when making decisions on recruitment or promotion (assuming the employer has reasonably identified that the group the applicant belongs is disadvantaged etc). 

Rather, this category of action is found in s159 which provides that race can only be considered in such circumstances where “A is as qualified as B to be recruited or promoted, [the employer] does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it” and where that action is proportionate. This is known as the ‘tie-breaker’ provision and it can immediately be seen that this will only take effect in very limited circumstances.  

Indeed, research has shown that employers fear relying on this provision lest they should be accused of ‘reverse discrimination’.  This is a not unlikely risk. Recently in the case of Furlong v Chief Constable of Cheshire Police, the Respondent employer was unable to rely on the ‘tie-breaker’ provision because the Employment Tribunal found that applicants from the disadvantaged group could not be taken to be “as qualified as” the Claimant. 

Interestingly, it appears the scope for positive action in the UK compares unfavourably to the US where race can be considered as a factor in recruitment and promotion decisions (although not the deciding factor). 

It can’t be said that a marginally wider scope for positive action has had an appreciably greater impact in the US than in the UK, but nonetheless, in light of the clear failure over the past 40 years, it is certainly time to look again at the actions of private employers in the UK. 

So what can be done?

Firstly, it is crucial that private sector employers understand and do not shy away from using the tools currently available to them under the legislation (including the tie-breaker provision).

Employers must consider and adopt best practice; for instance, positive action as a tool in apprenticeships as a way into professions is to be encouraged. 
Secondly, and as is clear from the above, the current framework is overly restrictive and needs revision. 

The UK Government must have a concrete response to those demanding change and usher in a more muscular approach to tackling inequalities in employment. The departure of the UK from the EU would seem like an excellent opportunity to do so


Ben Croft
Corporate accountability

Benjamin Croft

Benjamin Croft is a partner in the international department.