Contribution
My Lords, this has been an interesting debate on positive action, and I am grateful to the noble Lord, Lord Sharpe of Epsom, for initiating it. It raised important issues but, when the noble Lord, Lord Jackson, spoke of straw-man debates, I thought he was a good example in the issues that he raised, because we are not talking about positive discrimination here. As the noble Lord, Lord Sharpe, acknowledged, all Governments have supported positive action, for very good reasons.
The positive action provisions in the Equality Act 2010 enable, in a work context, both public and private sector employers to prioritise the recruitment of and promote people who have protected characteristics that are underrepresented generally or at certain levels in their workplace.
This is permissible only where the available candidates are considered equally qualified for the particular role. In other words, it is a tie-break based on workforce diversity. We therefore do not accept the premise of the new clause that another employee has suffered an unjustified detriment by not being selected. Of course, we are absolutely clear that it is illegal to positively discriminate, and I will give reasons.
The noble Lord, Lord Sharpe, raised something that I read in the Daily Telegraph about West Yorkshire Police. One of the things that, sadly, many of our newspapers fail to do is to issue the full statement. I thought West Yorkshire Police issued a commendable statement. It said:
“In West Yorkshire Police, we are committed to improving equality, diversity, and inclusion within the organisation, and strive to be more representative of the communities we serve.
Our Diversity, Equality and Inclusion team supports and consults with those with different protected characteristics such as sex, disability, sexual orientation, and race to ensure their views can influence and improve the service the force delivers. They also work to improve the wellbeing of everybody in the organisation and inclusivity overall.
The most recent census found that 23 per cent of people in West Yorkshire identified as being from an ethnic minority background. Our current police officer representation from ethnic minority backgrounds is around nine per cent. To address this under-representation, we use Positive Action under the Equality Act 2010. Our use of this was recently reviewed by His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in an Activism and Impartiality inspection and no issues were identified.
Positive Action allows people from under-represented groups who express an interest in joining the force to complete an application, which is then held on file until a recruitment window is opened. No interviews are held until the window is officially opened to all candidates. Enabling people from under-represented groups to apply early does not give them an advantage in the application process, it simply provides us with more opportunity to attract talent from this pool of applicants”.
I think that is the point that my noble friend Lady O’Grady was making. It is a pity that the Daily Telegraph did not report the full statement from the police because I think it sets this whole thing in perfect context.
A detriment arises where someone is treated unfairly by their employer—for example, where someone is promoted over them who is clearly a weaker candidate. If the reason for that was based on a protected characteristic, it would be unlawful positive discrimination under the 2010 Act and would be rightly challengeable, but this is not the situation under positive action. I think that has been extremely well illustrated by West Yorkshire Police in terms of how it adopted that policy.
We also have doubts as to whether the processes envisaged could be truly confidential. This could have undesirable implications for both the successful candidate and the complainant. Lawful recruitment decisions are confidential for good reason, and opening them up to this kind of probing risks creating interemployee bad feeling, particularly in smaller departments where the identification of people by inference or guesswork is easier.
The Bill is about improving employment rights, not creating new and unnecessary conflicts. Positive action can work effectively only as part of a confidential recruitment process, where transparency is often good for equality. What is proposed would, I fear, work against that, and as such the Government cannot support the proposed new clause.