Positive discrimination

Q. One of our members, who is of Afro-Caribbean origin, recently applied for a managerial position. Although the candidate (of white British origin) who was appointed was as strong a candidate as our member, given the lack of ethnic diversity amongst managerial grades, shouldn’t our member have been preferred?

A. Positive discrimination is unlawful in so far as it disadvantages the disappointed candidate on the grounds of their protected characteristic (in this example, on the grounds of his or her race). Therefore, it is not so much that your member should have been advantaged, rather that the successful candidate has a right not to be disadvantaged on the grounds of their protected characteristic (in this case, race).

Currently, the only type of positive discrimination that is lawful, relates to an employer providing access to training, and encouraging individuals to take advantage of “opportunities” (sections 37–38 of the Race Relations Act 1976). This restricted position will remain extant, unless and until the coalition government decides to enact the relevant provisions of the Equality Act 2010.

If they are ever brought into force, sections 158–159 of the Equality Act will permit employers, where candidates for a post are as qualified as each other, to select the individual from the disadvantaged group. This would apply both to recruitment and promotion.