At a glance
- A widely reported inquiry into the employment processes of the Royal Air Force (RAF) revealed how, in an attempt to boost representation of women and people from ethnic minorities and ‘push the boundaries’ of positive action, the RAF had actually engaged in unlawful positive discrimination.
- The RAF admitted that by fast-tracking ethnic minority and female recruits some men were discriminated against and apologised.
Background
The RAF conducted an internal inquiry into employment practices following the resignation of its head of recruitment in 2022, after she refused to implement what she said was an unlawful order to favour women and ethnic minorities.
The RAF had set annual ‘levels of ambition’ for desired percentages of women and ethnic minority recruits, as well as percentages in the workforce more generally. The levels of ambition were set by the RAF following a concern that, ‘Defence is neither sufficiently diverse nor as inclusive as it needs to be’. These ambitions were incorporated into individual and team objectives.
161 female and ethnic minority candidates were subsequently pulled forward for ‘phase 1’ training ahead of other staff to meet target. One of the consequences of this was that in some instances only female and BAME candidates were accepted onto certain courses and white male candidates were not. At the time, legal advice supported this as positive action under the Equality Act 2010 (EqA) based on an understanding that loading onto phase 1 training was distinct from the recruitment process.
A report following the inquiry was published in June 2023.
The outcome
The inquiry revealed that the RAF had engaged in unlawful positive discrimination. Whilst the initiative was referred to as training, in reality, being put forward for the training meant an offer of employment for the individuals and was in fact part of the recruitment process. However, the positive action provisions under the EqA are only permitted on recruitment in a ‘tie-break situation’ where the candidates are of equal merit. Therefore, putting these candidates forward for the training based on their protected characteristic, was unlawful discrimination against the white males in the RAF.
The inquiry found that, at the time, the RAF believed that it was ‘pushing the boundaries’ of positive action rather than acting unlawfully.
The RAF admitted that some men were discriminated against as a result of this practice, and apologised. They included a group of 31 men who likely missed the opportunity to qualify for a GBP5,000 joining bonus and who it is reported were offered compensation. The RAF also said that the way in which long-term aspirational goals set by senior leadership to improve diversity were translated into personal performance targets was wrong, and apologised to the Recruiting and Selection team and the former Group Captain Recruiting and Selection for the cumulative pressure placed on them to achieve those aspirational goals.
“This case highlights the dangers of misunderstanding the scope of positive action under the EqA and the importance of ensuring that the right positive action exemption is considered in the circumstances.”
What does this mean for employers?
It is important for employers to carefully distinguish between lawful positive action and unlawful positive discrimination, and to consider which positive action exemption may be applicable in the circumstances. On recruitment or promotion, the employer cannot have a policy of automatically preferring people with the relevant protected characteristic; the exemption can only be used in a tie breaker situation between candidates who are as qualified as each other.