Companies that practise positive discrimination may have the best of intentions, but they are still likely to find themselves on the wrong side of the law. Julie Quinn, partner at law firm Nabarro, looks at how Harriet Harman’s proposed Equality Bill will modify the status quo.

Companies that practise positive discrimination may have the best of intentions, but they are still likely to find themselves on the wrong side of the law. Julie Quinn, partner at law firm Nabarro, looks at how Harriet Harman’s proposed Equality Bill will modify the status quo.

Preferring one candidate over another because she is a woman, or comes from a minority background, is currently outlawed in the UK except in very limited circumstances (largely training). So if a company recruits a woman in circumstances where a male applicant is better qualified, the man will have a successful case of sex discrimination.

The Equality Bill proposes that employers aiming to employ a more diverse workforce can make use of positive discrimination to achieve that goal. That said, it will still be illegal to prefer a candidate from an underrepresented minority over another who is better qualified. What the Bill does is allow an employer to favour, say, an Asian candidate over a non-Asian one where both are equally qualified.

Debate continues on the rights and wrongs of positive discrimination. Supporters contend that inequality persists in many British workplaces despite anti-discrimination laws having been in force for 30 years. Critics counter that positive action is still a form of discrimination and that it is wrong to pick a candidate, in any circumstances, on any grounds other than merit.

Is the Equality Bill likely to change business practice radically? No. The Bill is predicated on a very narrow set of circumstances: two equally qualified candidates. In all my years of interviewing I have never seen that.

Candidates always have different skill sets and different experience, and using race or sex as the determining factor is a real risk. Aside from the obvious legal risk from the unsuccessful candidate, if the employee subsequently finds out she was chosen because she is a she, I can envisage serious morale issues for her and credibility issues within the surrounding team.

That said, the Bill opens up a healthy debate about what the legal system ought to do – or indeed can do – to eradicate prejudice from the workplace. The trouble is that the vast majority of discrimination is subtle and often subconscious. How many occasions do you hear a line manager say, ‘We don’t want him here because he is black’? Usually it is about whether he ‘fits’ or how likely he is to ‘rub people up the wrong way’. Very often the line manager is genuine in his conviction that this is not about race. It’s hard to tackle such inbuilt prejudice through legislation.

The best course of action, irrespective of the Equality Bill, is to continue to recruit on merit alone, backed up with solid anti-discrimination policies and training to make sure that actually happens.