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Firms who fail to improve diversity need new laws

When it comes to diversity employers know that they need to up their game. The Confederation of British Industry reported in 2017 that 93% of people surveyed believed a diverse and inclusive workforce was important for the future of the organisation they worked for. This was an increase from 76% in the previous year.

It seems that companies often struggle to adopt measures which help make a difference in improving the diversity in the company. This was not helped by a recent employment tribunal decision.

The tribunal – which was a first of its kind – ruled that a white, male, non-disabled candidate for a police role had been unfairly discriminated against. Cheshire Constabulary had applied ‘positive action’ legislation which related to recruitment and promotion in a way which was discriminatory.

There is a difference between ‘positive action’ and ‘positive discrimination’. Employers simply cannot recruit women in favour of men. What is important to remember is that where proportionate, the Equality Act allows employers to select candidates from less represented and disadvantaged groups where they are ‘as qualified’ as candidates from more represented and advantaged groups.

In this context, what do ‘as qualified’ and ‘proportionate’ mean? Furthermore, should tribunals have full control over deciding who is ‘as qualified’? Unless evidence is clear that underrepresented and disadvantaged candidates cannot perform the required duties, it should be left for the employer to decide suitability.

The tribunal found that Cheshire Police had acted in a way that was not proportional because they had already put in place other measures to increase diversity. These were already bearing fruit. They included holding events with local employers with the goal of supporting and developing applicants from diverse communities.

Although police forces had taken steps to increase representation from minority and disadvantaged groups, the progress had been slow. In 1999 representation of police officers from ethnic minority backgrounds was 2%, while in 2005 it had only increased to 5.5%. This is compared to 14% of the wider population who are classed as from ethnic minority backgrounds.

Surely then, it is proportionate for the police force to make use of ‘positive action’ in order to increase the proportion of ethnic minority recruiting.

Because the Cheshire Police case was only decided at employment level, other tribunals are not bound to follow it. What becomes obvious is that faced with this type of legal hurdle other employers may be deterred from using positive action in order to achieve a more diverse workforce.

After the government audit on race disparity in 2017 many questions arose as to the need for more diverse workforces. It seems that what employers really need is more concise legislation.

This could be achieved by the government immediately reviewing the ‘positive action’ legislation with the intention of amending the law to allow employers - and not tribunals - the ability to decide which candidate is ‘better qualified’ to carry out the task.

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