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Navigating Positive Action as a Recruiter

What if an employer instructs you to help them fill a role with a specific kind of candidate – a woman, an ethnic or racial minority or someone who identifies as LGBTQ+?

With research consistently showing that diversity produces more innovation and profit coupled with pressure from the rise in mandatory and voluntary diversity reporting, it’s no surprise employers are keen to diversify their teams. With the ‘war on talent’ it’s also no surprise that employers need help recruiting top candidates, especially for senior roles where competition for talent can be fierce. That’s where you come in! 

But cherry picking a candidate (or candidates) for an employer based on the candidates’ protected characteristics likely amounts to unlawful discrimination and could result in costly litigation and reputational damage – for the employer and for you. The Equality Act 2010 prohibits positive discrimination by ‘employers’ and also applies to employment agencies and executive search businesses; the duties include not discriminating in making arrangements for selecting people to whom services (executive search) are provided, and to ensure instructions (to search) are free from discrimination. There are many steps you can take to help a business lawfully meet its recruitment and DEI needs. So, what should you do?

1. Start by making sure YOU understand the difference between unlawful positive discrimination and lawful positive action and other exceptions to anti-discrimination laws. 

Positive discrimination is the unlawful favouring of someone with a particular characteristic by treating them differently in a positive way e.g. an organisation appointing someone from an underrepresented group into a role without considering whether they have the right skills for the post. Other candidates who are better qualified are passed over.
Positive action on the other hand includes proportionate measures taken in the workplace to overcome disadvantage, meet specific needs and/or combat underrepresentation of people with particular protected characteristics.
For more information, we recommend our recent article on the difference here.
2. Unless given reason to believe otherwise, assume the employer has good intentions and may be unaware of the fine line between positive action and positive discrimination. 

You might consider pointing out that prominent organisations like the RAF and the Police have been in the news recently for engaging in unlawful positive discrimination even though they had intended to take lawful positive action to help underrepresented groups. 

You might emphasise that confusing the two is easily done, but reassure them that part of your job is to help them achieve their long-term DEI and recruitment goals safely. With this approach, instead of simply saying ‘No’, you can’t do what they want, you’re adding value and expertise.

3. Identify their underlying goal and consider the best solution.  

If they’ve asked you to find a specific kind of candidate, explore the reason behind this. Then you can better tailor your approach. For example, if they are trying to recruit a specific kind of candidate because candidates with that characteristic are underrepresented in their industry generally or at senior levels, then positive action designed to increase the diversity of their applicant pool may be most appropriate.
Meanwhile, identify the objective qualifications and experience desired for the role, and put forward the best candidates according to those objective metrics irrespective of protected characteristics. Consider the difference between positive action and positive discrimination set out in our previous article on the topic. In particular, that merit should reign through to the end of the recruitment process and then, only if they have a tie-breaker situation between two equally-qualified candidates, should they apply positive action, if applicable.
However, another exception may be more appropriate. For example, if an organisation has asked you to only put forward female candidates because the successful candidate would be working with female victims of sexual violence, this might be a genuine occupational requirement.

If you believe that an employer may have a genuine occupational requirement, we highly recommend encouraging the employer to take legal advice before starting the recruitment process.  

4. Consider how your business and contacts help or hinder your ability to help an employer take positive action.   

Just as an employer will only find itself in the position of applying positive action in a tie-breaker situation if it has diverse candidates apply in the first place, so too can you only put forward diverse candidates if you have a diverse group of qualified candidates to recommend. Consider how might you improve the diversity of the pipelines you facilitate.
For example, you may consider partnering with professional associations dedicated to improving DEI in their respective industries or charities that work on specific social and education issues. Training is available for professional recruiters who are interested in improving the diversity of their contacts in a lawful and respectful manner.
5. Help the employer improve its appeal to diverse candidates. 

In addition to improving your own awareness of top diverse candidates, you can help the employer make itself more attractive to those candidates, increasing the likelihood that candidates will apply and/or accept offers.
You can research what kind of additional benefits are important to diverse candidates. For example, if the employer is keen to attract more women into senior roles, given that women statistically are more likely to be caregivers, you might ask an employer what additional (beyond statutory requirements) benefits the employer offers to support caregivers. This might be an enhanced parental leave policy or IVF support. This is another great opportunity to show off your expertise and add value.
6. Consider whether you must decline to act for the employer.  

Improving diversity in a lawful manner cannot always happen quickly. If after you explain why you cannot cherry-pick candidates based on a certain characteristic, the employer persists in its instruction, you may have to decline the work or else risk liability for breaching anti-discrimination laws yourself.

CM Murray LLP regularly provides training specifically tailored to the recruitment sector, assisting executive search/recruiters understand how best to comply with the non-discrimination duties and to navigate difficult questions when they arise. If you would like to discuss such training or have any questions on positive action in this context, please contact Partner Emma Bartlett or Associate Kelsey Murrell.