Some of you may recall this headline in the Daily Express on 26 June 2008 as the debate raged about the then Equalities Minister, Harriet Harman's, proposals to change the law relating to positive action. In contrast yesterday's call by Police Minister, Damien Green, to the Police Superintendents' Conference for Police Forces to use positive action provisions to increase diversity in the Police did not receive quite the same headlines and perhaps reflects a shift in attitude to positive action.
It is evident that moves to increase diversity in the Police are gaining momentum with reports in June suggesting that the Metropolitan Police are in discussions with the Home Office about changing the law to legislate for 50 / 50 white / BME recruitment similar to the model that was used to change the religious make up of the Police Service of Northern Ireland, which saw one Catholic officer recruited for every Protestant officer.
By way of a reminder positive action is lawful but positive discrimination is, subject to a few exceptions, unlawful. The Equality Act 2010 permits two forms of positive action:
1. General positive action. Where there is a reasonable belief that persons with a protected characteristic (race, sex, etc.) are disadvantaged or have different needs or where their participation in an activity is disproportionately low employers can take proportionate measures to enable or encourage those persons to overcome that disadvantage.
2. Positive action in recruitment. Where an employer reasonably thinks that persons with a protected characteristic are disadvantaged or where their participation in an activity is disproportionately low employers can treat a person with the particular protected characteristic (A) more favourably in a recruitment or selection exercise than a person (B) who does not have that protected characteristic where both are equally qualified. The employer must not have a policy of treating persons who share a protected characteristic more favourably in relation to recruitment or promotion and the decision must be proportionate. This is sometimes known as the "tie break rule."
Employers need to tread with caution and should seek legal advice before embarking on any form of positive action. In the meantime, it will be interesting to see what further developments there are over the coming months in relation to the moves to increase diversity in the Police.