It has been reported recently that the BBC are advertising vacancies setting out specific requirements on the ethnicity of applicants.
Allegedly two white applicants have been turned down for a 12 month trainee role as junior scriptwriters because the BBC wanted people from “ethnic minority backgrounds”. The BBC stated it was to address an “under-representation of people from ethnic minority backgrounds in script editing roles”.
It would appear that despite the furore this caused, the BBC have continued down this route in their search for a new presenter for The One Show. According to a leaked internal email, they are looking for someone from an “ethnically diverse background” and that ideally the candidate would be male, over 30 and have a regional accent, preferably the North West.
The important question to consider here is that, in requesting such specific requirements on race and sex in an attempt to address potential under-representation within the business:
Are the BBC, as employers, committing an act of discrimination?
The answer is found in the legislation.
To put it simply, the Equality Act 2010 states that it is unlawful for an employer to discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees with a particular protected characteristic.
However, there will be no indirect discrimination if the employer’s actions are objectively justified. They must show there is a legitimate aim (a real business need) and that the PCP is reasonably necessary in order to achieve that aim.
How do the courts look at these claims?
The approach generally taken by tribunals is to look at this from two angles:
- Can the employer establish that it was pursuing a legitimate aim?
- Can the employer establish that measures taken to achieve that aim were appropriate and proportionate?
An employer may also be able to argue that there is a Genuine Occupational Requirement (GOR) for having specific pre-requisites in a job vacancy. For example, it may be found to be a GOR for the BBC to request a black actor over the age of 50 to play the part of a father within a black family on a show.
With regards to the junior scriptwriter vacancy, the aim appears simply to be to try to rectify under-representation of ethnic minority backgrounds within the organisation rather than any GOR. However, the Employment Appeal Tribunal has held that an employer cannot justify an indirectly discriminatory practice based purely on social aims, which are unrelated to the actual needs of the business.
The actions will also not be considered reasonably necessary if the employer could have used less discriminatory means to achieve the same objective.
Given the above, it is doubtful as to whether the BBC would be able to show it was pursuing a legitimate aim and if so, whether the action was proportionate. It will be interesting to see if the BBC considered any other ways of increasing the number of ethnic minorities within the organisation.
The BBC could argue that Section 159 of the Equality Act concerning positive action in recruitment and promotion applies. This Section is for situations where an employer reasonably thinks that people who share a protected characteristic (i.e. race or sex) suffer a disadvantage or their participation in an activity is disproportionately low.
In those circumstances, the employer could take proportionate action to encourage people who share the relevant characteristic to overcome or minimise the disadvantage or participate in such activity.
Another course of action for the BBC may have been to advertise the vacancies for all and choose relevant candidates based on their suitability for the role. If the final choice was between a white candidate (person A) and someone from an ethnic minority (person B) (both being equally suitable and qualified for the role) then they could potentially have chosen person B for the role as a “positive action”. To impose a blanket ban on people from certain racial backgrounds seems to go way beyond what would appear to be necessary in solving the problems that they state they are facing.