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Employing diversity and equality in recruitment practices in the wake of #BlackLivesMatter

BY Erin Moncur
Employment Law & HR

The tragic killing of George Floyd in Minneapolis in May of this year sparked mass protests and campaigning across the globe against the systemic racism faced by Black people. Only this week, it is reported that Jacob Blake has been left paralysed from the waist down after being shot in the back seven times by a police officer in Kenosha, Wisconsin. The #BlackLivesMatter movement extends far beyond police brutality as the world has been forced to confront the pervasiveness of racial prejudice that blights so many aspects of our society.

The world of work is no different. Undeniably, employers have a large role to play in ensuring that race discrimination in their workplace is not only addressed, but actively prevented. As the tolerance of businesses who rest on their laurels when it comes to racial injustice is shrinking, it is now more important than ever for employers to reflect on their current practices and to take steps to weave diversity and equality into the fabric of their organisation.

Considerations for recruitment

Race discrimination in the employment context can begin before an individual even gets a foot in the door. This is demonstrated by recent research which found that ethnic minority job seekers with identical skills and experience needed to send an average of 60% more applications to receive the same level of interest as their White counterparts according to a study by Nuffield College.

Employers should ensure that those undertaking recruitment for their organisation are adequately trained in diversity and inclusion. It is important to be mindful that not all discrimination is overt or deliberate and that unconscious bias training can be invaluable in helping recruiters to recognise when they may be unintentionally ruling a candidate out for a prejudicial reason.

Employers should also consider whether there are simple practical steps they can take to eradicate bias, for example by using anonymised CV’s, keeping interview questions and scoring systems as factual and objective as possible, and ensuring that interview panels reflect the diversity that they want to attract.

Positive action

One legal tool that is particularly valuable in tackling the lack of racial diversity in many workplaces is positive action. Whilst positive discrimination whereby you treat a person more favourably than another because of a protected characteristic is generally unlawful, section 159 of the Equality Act 2010 allows for positive action in recruitment decisions. Known colloquially as the ‘tie-breaker’ provision, this section allows an employer to treat an applicant who has a protected characteristic more favourably in connection with recruitment than someone who is as qualified for the role, but who does not have the relevant protected characteristic.

An employer can only utilise positive action in circumstances where they reasonably think that people with the relevant protected characteristic suffer a disadvantage or are under-represented in some way because of their protected characteristic. As well as the individual in question being ‘as qualified’ as the other individuals under consideration, for positive action to be lawful the employer must not have a policy of treating those who shared a protected characteristic more favourably and the taking of such positive action must be a proportionate means of achieving the aim of minimising the disadvantage or under-representation.

Whilst each incidence of positive action should be carefully analysed on a case-by-case basis to ensure that there is clear evidence of the disadvantage or under-representation being relied upon, employers should be live to the fact that they can take advantage of this opportunity to help remove the barriers that Black candidates may face when pitted against an equally qualified White counterpart.

By no means are the above examples exhaustive when addressing racial inequality and discrimination during the recruitment process. They do however represent some first steps that employers can take to recognise the biases that may be ingrained in their current practices and to move towards fairer judgements and decisions that will not only benefit those who face barriers because of their race, but will enhance the rich diversity of the organisation as a whole.


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