Watson Esam | News | Positively Discrimination?

Northamptonshire County Council has recently left employment lawyers in disbelief after it issued a tender for private firms to bid for a contract which involved transporting a vulnerable child to and from school.  Leaving itself wide open to discrimination claims the council included in the advert the comment “Please note that the escort must be female, white and non-Muslim."

UK discrimination laws mean that it is illegal for employers to demand a specific gender or race unless it is a prerequisite for them to be able to do the job advertised.  Talk of “positive discrimination” - which generally means employing someone because they come from a deprived group in spite of whether they have the relevant skills and qualifications - is often wrongly used to try to defend such demands, and is unlawful.

“Positive action”, however, is lawful in certain circumstances and is aimed at encouraging people from particular disadvantaged groups to take advantage of opportunities for work and training.  Examples of positive action could be: job advertisements designed to reach members of specific groups and to encourage their applications e.g. using ethnic minority press, as well as other newspapers; using employment agencies in areas where under-represented groups are concentrated; recruitment and training schemes for school leavers designed to reach younger age groups; employers encouraging under-represented groups to apply for promotion; certain training for under-represented groups who lack particular expertise but show potential.  Certain police forces often use positive action to encourage entrants from women and ethnic minority groups.  Contrary to popular belief however, positive action does not mean that an employer can discriminate when making the decision of who to employ - selection for recruitment or promotion must be based solely on merit!

Jay Bhayani, senior partner and head of employment at Watson Esam said: “It appears that Northamptonshire Council has apologised unreservedly for its actions – which are almost certainly discriminatory, and has launched a “full scale review”.  However, it is unlikely that they can cite any realistic defence.  Businesses need to be aware of their obligations with regard to discrimination and in this day and age there is certainly no excuse for local government not to get it right!  It looks like the council may have left itself wide open to potentially costly legal action on this one.”

For further advice and information on anti discrimination laws or any other element of employment law, contact Jay Bhayani at Watson Esam on 0114 275 3350 or email jay.bhayani@watson-esam.co.uk.

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