Many employers in the UK have been grappling not solely with trying to hire employees from more diverse backgrounds but also with how to increase diversity at senior and c-suite levels. This is probably not surprising given the recent global focus on the need for social change, and studies like this which have demonstrated that businesses with gender and ethnically diverse executive teams tend to be profitable. Here we look at some practical steps employers can take to try and achieve this whilst minimising legal and practical risks.

Legal limits: Positive action vs positive discrimination

When considering their recruitment strategies, UK employers should be aware of the line between:

• ‘positive action’, which is lawful and which broadly means taking proportionate steps to remove disadvantages faced by protected groups to level the playing field; and
• 'positive discrimination’, which is giving favourable treatment to people solely because they have a protected characteristic and which is prohibited in all but the most limited circumstances.

Positive action

In summary, employers can take positive action. This means where an employer reasonably believes that people sharing a protected characteristic:

• suffer a disadvantage
• have different needs from others or
• have disproportionately low levels of participation in an activity,

then the employer can take proportionate steps to remedy that disadvantage, meet those needs, or boost participation, to level the playing field. This might include, for example, specific mentoring programmes, training, networking or support groups. 

When recruiting or promoting employers can lawfully give preference to people from an underrepresented group in limited circumstances, namely if:

• the candidates are equally qualified for the role
• the employer acts proportionately in granting the preference and
• the employer does not have a policy of automatically preferring underrepresented groups.

As you might expect, in practice this tends to be rarely relied upon as it can be difficult to determine that two candidates are precisely equally qualified.

Top tips for UK employers

Despite these limitations, there are many steps that employers in the UK can take to increase diversity at senior levels within legal limits. Here are some tips that can help:

1. Check your job adverts and job descriptions: Remove language or criteria which might be stereotypical or put off certain groups. For example, this could include language that might be seen as stereotypically masculine.
    
2. Recruitment companies: You may want to make it clear to recruiters that the company wants to have a balanced slate, reflecting ethnic and gender diversity. You could consider using a recruitment company which specialises in doing so. Be careful however not to limit applications from other groups which can lead to legal challenge.
    
3. Links, networks and advertising: Consider forging links with networks for underrepresented groups and promoting job vacancies through their channels.
    
4. Showcase your business’ commitment to diversity: Other than referring to this commitment in job adverts, consider whether your business genuinely demonstrate this commitment. For example:
   i. Is your commitment to diversity showcased on your website or hidden away?
   ii. What is your DEI plan?
   iii. Do you have any relevant policies in place? This might include menopause policies, carer’s leave or flexible working policies over and above the statutory minimum. Such policies may be important for senior hires, especially if they are ‘sandwich carers’ with caring responsibilities for children and their parents or other loved ones.

5. Recruitment process: Try to weed out bias in your recruitment process – this might include aiming to have balanced interview panels as well as inclusive interview questions and selection processes. You may want to consider training recruitment teams and recruiting managers on matters such as implicit bias and the business benefits of diverse teams.
    
6. Succession Planning: When recruiting for a live open position you will often be under pressure to recruit quickly, but consider what the long term strategy is for succession planning and promoting from within. This can help ensure you have a wider pool of potential candidates in the future. For instance, what can you do to encourage retention of diverse candidates as they increase in seniority or to support them? This might include mentoring or buddying programmes.

Pitfalls to avoid

Employers may want to avoid the following practices that can lead to both legal and practical risk and can also be counterproductive:

• Giving automatic preference to candidates because of their protected characteristic (e.g. having a policy to only interview women). Aside from the legal risk, it may well undermine their confidence and credibility and consequently their ability to do the job if the candidate or others in the business feel they are purely a tokenistic hire.
• Instructing recruitment agencies to discriminate by asking them to only put candidates forward from certain groups.

If you would like to discuss positive action or recruitment of candidates from diverse backgrounds generally, please get in touch with Natasha Adom, Ben Rouse or your usual GQ|Littler contact.