It is encouraging to see increasing numbers of organisations launching equality and diversity initiatives. Nevertheless, it is crucial that organisations carefully consider how they best implement these and are alive to potential pitfalls.
When discussing anti-discrimination law, both in and out of the workplace, focus is placed primarily upon the impact on minority groups. This is understandable given that these groups are often the ones who need this protection the most. A recent Tribunal case in which an employer was found to have discriminated against straight male workers, however, has served as a timely reminder that discrimination laws are there to aid equality and protect all groups from discriminatory conduct.
The Headlines
Two male creative directors have won a claim for discrimination on the grounds of their sex after being selected for redundancy. The two men alleged they were subjected to discrimination, victimisation and subsequently selected for redundancy after complaining about a diversity presentation which made a call to “obliterate” the businesses reputation for primarily comprising of “white, British, privileged, straight men”.
Following the presentation, the two men submitted a joint grievance to raise concerns about potential discrimination on the basis of their sex (amongst other characteristics such as their age and sexuality). They were both selected for redundancy two months later.
The Tribunal found failures in the redundancy process and the investigation and, most importantly, found that the Claimants’ dismissals were because of their sex.
Points to Note
The actions of the employer were part of a drive to improve equality and diversity and, given that this agency had a reputation for employing a disproportionate number of white privileged straight men, the overall objective of the employer is certainly understandable. Indeed, organisations spanning many sectors are grappling with ways in which they can boost diversity and close pay gaps between those with different protected characteristics. For example, via Gender Pay Gap reporting which has attracted much attention in recent years.
Whilst drives towards a more diverse and inclusive workplace is clearly a positive movement, this case highlights the potential pitfalls when the steps taken to achieve this aim are not carefully considered and implemented.
Most businesses will be fully aware that it is unlawful to discriminate against anyone because of the nine protected characteristics outlined in the Equality Act 2010. However, this case shows that workplace diversity cannot be achieved by simply replacing groups of employees (in this case white straight men) and replacing them with employees from minority groups. This is likely to be a discriminatory act in itself and runs counter to the purpose and intent of the Equality Act 2010. Taking this approach can, therefore, expose businesses to legal claims of unlawful discrimination.
Positive Action v Positive Discrimination – A Key Distinction
The lines between positive action and positive discrimination can sometimes become blurred. They are, however, very distinct. Understanding this distinction can help your organisation to actively encourage diversity, equality and inclusion lawfully.
Positive Action
Positive action is lawful and involves encouraging a diverse applicant pool for a position. This can be done by using inclusive language, referencing family friendly and other policies such as flexible working, offering reasonable adjustments as well as running equality and inclusivity campaigns.
Positive Discrimination
On the other hand, positive discrimination involves treating someone more favourably than another. A clear example of this would be promoting an individual to a role simply because they are in a minority group even though they may not be the best candidate for the role.
Nevertheless, the distinction between positive discrimination and positive action is not always clear and to complicate matters further, there are some exceptions in which discrimination can be lawful; although these are rare.
Given the complexity of these issues and the significant financial and reputational consequences of getting it wrong, we would recommend taking early legal advice to ensure your actions are lawful.
The way forward
Whilst legislators may not have envisaged discrimination laws protecting white, straight, middle-aged men, it is clear that caution and careful planning is needed in these situations, as it is not simply a matter of removing one group and replacing them with another. This poses the question; how can organisations who are dominated by majority groups improve diversity without risking claims like this?
There are many ways employers can help to prevent discrimination and increase diversity in the workplace. For example:
- having up-to-date and comprehensive equality policies;
- providing regular anti-discrimination training to all employees and staff;
- using inclusive language in job advertisements;
- providing clear routes for complaint if discrimination occurs;
- cultivating an open environment for people to be heard and to raise awareness of these issues; and
- holding regular individual meetings between employees and their managers to build positive and open working relationships.
We feel passionately about equality and diversity and believe that we all have a responsibility to address inequality. Moving toward a more balanced workplace is both a valuable and necessary step for organisations to take and will prove beneficial to all; the organisation included. It should be remembered that successful diversity initiatives ought to be collaborative and include employees in the process as a way to enact change without being derogatory to majority groups.
There is no one size fits all approach and a strategic plan, tailored to the needs of the business, ought to be developed to meet equality and diversity objectives.
We would urge all organisations to consider whether they are up to date with their policies, audits and training; all of which can help drive towards a more diverse, inclusive and equal workplace in a legally compliant manner. We also suggest considering whether or not the steps you are thinking of taking and/or may already have taken cross the line from positive action (which is lawful) to positive discrimination (which is unlawful).
This is a complex area, and it is easy to get this wrong, so if you have any concerns or queries please do get in touch with our Employment team who will be pleased to offer advice and support.
