On 26 August 2015 the Equality and Human Rights Commission (EHRC) published specific guidance for the television broadcasting industry
on positive discrimination entitled ‘Thinking Outside the Box’.
This publication provides information on what action can lawfully be taken to increase diversity in the industry, and aims to tackle some of the misunderstandings about what equality law prohibits and permits.
Here, we have highlighted the key areas for consideration when it comes to ensuring that equality and diversity are an integral part of your recruitment process.
How can I diversify my production database?
On databases, the key issue is that content is often commissioned at very short notice and Indies need to put together a team of production staff and/or cast for productions very quickly. This has led to a number of Indies seeking to develop databases of information including the protected characteristics of on- and off-screen individuals with a view to being able to meet the broadcasters’ diversity targets.
The basic advice given in the guidance is that such databases can be used to widen the pool of candidates but it would be problematic if they were used to narrow the pool by using them as a priority or exclusively. It also points out (quite rightly) that the Data Protection Act 1998 Rules are critical in the establishment of such a list, with the key provisions being that:
• individuals have given explicit consent to processing their sensitive personal data – such as protected characteristics under the Equality Act 2010 (apart from gender and age) – or
• the Indies should check that the individual has previously made such sensitive personal data public or given consent to it appearing in the public domain.
As is stated in the guidance, the most effective way to comply with the Diversity Protection Act is to notify individuals that a database is being compiled, explain the purposes for which it is to be used and invite them to provide information by completing a form or a data sheet. Of course, this information should not be used for other purposes, and you need to make sure that it is kept up to date.
What is a ‘positive action’ scheme?
The EHRC Guidance sensibly suggests some positive action schemes, including ways of broadening the pool of people with protected characteristics that Indies can draw from, including making new connections, setting up training for people in protected groups, doing outreach and profile raising, establishing paid internships and so on. All of these should be lawful provided that Indies have gone through the section 158 flow chart process first (see above).
What is the difference between targets and quotas?
One issue that is often discussed is the difference between targets and quotas. There is a lot of hearsay about Indies being specifically required to have certain percentages of BAME individuals on certain productions being commissioned by broadcasters. Any steps taken in recruitment or promotion in order to fulfill a quota would run the risk of being unlawful if they went beyond the positive action permitted by the Equality Act. As the Guidance also says, running a competency-based recruitment process and keeping clear records will certainly help if you are ever required to demonstrate the actions you have taken to ensure fairness to applicants and remain within the law
When can I use a tie-break provision during recruitment?
The European Court judgements make it clear that an employer cannot simply set a threshold for candidates which is artificially low, and then have a wide field of ‘equally qualified candidates’ from whom it can tie-break various from protected groups. The recommendation from the EHRC is that you need to compare the candidates on overall ability, competence and professional experience, looking at qualifications that they have, both formally and informally.
Once you have (reasonably) established on that basis that two or more candidates are equally qualified for the role, then you
may choose those from the disadvantaged or under-represented protected group if you can show that this decision is:
• Proportionate, in the sense that you are balancing the benefit to protected groups against the impact on non-protected groups; and
• You do not always have a policy of choosing the person from the protected group automatically – so you need to show that you are doing this on a case-by-case basis each time.
Russell Brimelow Partner, Lewis Silkin LLPK
How do I increase opportunities for disabled people?
The Equality Act treats disabled people differently from those with other protected characteristics. It is not unlawful to treat a disabled person more favourably than a non-disabled person because of their disability. For example, it is lawful to treat disabled people more favourably in a recruitment process by operating a guaranteed interview scheme for those who identify themselves as disabled, automatically short-listing them for an interview if they meet the minimum criteria for the post.
What are ‘reasonable adjustments’ for disabled people?
Employers have a legal duty to take reasonable steps to remove barriers that put disabled workers at a disadvantage compared with those who are not disabled, so they can do their work and apply for jobs in the same way as non-disabled people. This is the duty to make reasonable adjustments and applies where you know, or reasonably should know, that someone has a disability. Reasonable adjustments may involve amending practices or rules, changing physical features such as steps or chairs, or providing additional aids such as an adapted keyboard or text to speech software. Many effective and practicable adjustments for disabled people often involve little or no cost or disruption and it will often be reasonable to make them. The average cost of a reasonable adjustment is a lot lower than you might think – just £184.
What are the recruitment guidelines for hiring disabled people?
HIRING DISABLED PEOPLE: THE FACTS
You can only ask questions about disability and health during recruitment in specific circumstances. Such questions are permitted to establish whether reasonable adjustments are required during the recruitment process (such as access to the interview), or to find out whether the job applicant will be able to carry out an intrinsic part of the job (once any reasonable adjustments have been made). If having a particular impairment is an occupational requirement of the job, it is permissible to establish if the candidate has that impairment – for example,
if a blind presenter is needed for a programme targeted at blind viewers.
It is lawful to treat disabled people more favourably in a recruitment process by operating a guaranteed interview scheme for those who identify themselves as disabled.
How do I avoid discriminating when recruiting a disabled person ?
• be careful when writing an advertisement for a job vacancy. Stay clear of any wording that could be open to legal challenge. For example, wording that includes any reference to mental and physical health, or fitness which might relate to a disability, or one of the other protected characteristics. However, there can be rare exceptions
• avoid advertising solely in one kind of place or media – for example, by advertising only in a specialist lifestyle magazine, or on a website targeted at the non-disabled. Use at least two different channels so as not to end up with candidates from too narrow an audience
• be aware that a job application form could inadvertently be discriminatory. For example, to insist on the form being filled out ‘in your own handwriting’ may inadvertently discriminate against those whose disability may affect their writing ability
• only ask candidates to complete tests if they are relevant to the job, and where they are, make sure they can be accessed by people with a disability.
And where possible an employer should:
• give the details about a vacancy in an alternative format, if requested by the candidate – this could include, in large print, Braille or audio format
How can I apply ‘positive action’ when hiring disabled people?
Under the Equality Act, an employer can take what the law terms ‘positive action’ to help employees or job applicants it thinks:
• are at a disadvantage because of their disability, and/or
• are under-represented in the organisation, or whose participation in the organisation is disproportionately low, because of their disability and/or
• have specific needs connected to their disability
An employer must be able to show evidence that any positive action is reasonably considered and will not discriminate against others. If it can, it may legally:
• take proportionate steps to remove any barriers or disadvantages
• provide support, training and encouragement to increase the participation of people with a disability
This means ‘positive action’ can be used to encourage applicants and develop the organisation’s talent pool.
Acas guidelines ‘Disability discrimination: key points for the workplace’, January 2016
• accept applications in alternative formats, and ensure that
online application processes can be accessed by people with a disability. However, there may be cases where providing alternative formats and online accessibility for the disabled may prove difficult or impracticable for some small employers
Acas guidelines ‘Disability discrimination: key points for the workplace’, January 2016