November 17, 2014

It follows hot on the heels of not only the introduction by ITV of the “Social Partnership” as part of its commissioning process but also the announcement by the BFI of its “three-ticks guidelines” to ensure that lottery funded film productions reflect and represent UK diversity.   

Few would argue that encouraging diversity within the film and TV industry is anything other than a good thing.  And most would assume that the law would not stand in the way of such a seemingly commendable objective.  But the reality is that there is a very thin dividing line between promoting diversity and engaging in positive discrimination which, with a few limited exceptions, is prohibited under UK equality law.  Production companies will therefore need to be careful to ensure that they stay on the right side of the line when attempting to achieve the various diversity targets and objectives that are expected of them.  If they don’t they will be exposed to claims for unlawful discrimination from those who feel they have lost out as a result of the drive for greater diversity.  Getting it wrong can be costly: compensation for discrimination is uncapped and it’s not uncommon to hear of tribunals making awards consisting of five and sometimes six figure sums.

The legal position is far from straightforward.  Although positive discrimination is generally unlawful under UK law, employers are permitted to engage in so-called “positive action” aimed at alleviating disadvantage or under-representation experienced by individuals with one or more of the “protected characteristics” set out in the Equality Act 2010 (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).

Only two forms of positive action are permitted, both of which require a number of conditions to be satisfied.  The first type can apply where an employer reasonably thinks that persons with a particular protected characteristic are disadvantaged, have different needs or are disproportionately under-represented.  In these circumstances, the employer can take “proportionate measures” to enable or encourage persons with the relevant characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation.  For example, if an employer reasonably believed that there was an under-representation of women or people of a minority ethnic background at a senior level within its organisation, it might be able to offer such staff training or mentoring in order to improve their promotion prospects.   

The other, and more controversial, form of positive action was introduced in April 2011.  In simple terms it allows an employer, when faced with a choice between two equally qualified candidates, to give preference to a candidate with a protected characteristic.   However, this “tie-break” provision is subject to a number of important conditions and limitations.  First, it can only be used where the employer “reasonably thinks” that people with the relevant protected characteristic are under-represented in the workforce or otherwise suffer a disadvantage connected to that characteristic.  Secondly, giving preference to the candidate with the protected characteristic must be a “proportionate” way of addressing the under-representation or disadvantage.  Thirdly, the two candidates must be “equally qualified”.   And finally, the employer must not operate a policy of routinely favouring candidates with a certain protected characteristic.   Unless the employer is able to demonstrate that all four of these conditions are satisfied, it will be exposed to a claim for unlawful discrimination from the unsuccessful job applicant.

The need for all these conditions to be satisfied together with the lack of clarity over how terms such as “equally qualified” will be interpreted by the courts, has meant that very few businesses have chosen to take the risk of relying on these tie-break provisions.  In practice, it’s rare to come across two candidates who can be said to be exactly the same in terms of their suitability for a particular position.  It’s therefore perhaps unsurprising that employers are reluctant to place themselves in the position where they may have to discharge the burden of proving that they are.  

In short, it would be a mistake to think that there any simple answers to the question of how to improve diversity in the film and TV industry.   The appointment of more people from diverse backgrounds may appear to be a superficially simple and obvious solution, but it’s unfortunately a little more complicated than that.  Our equality laws are designed to achieve just that: equality.  And that means they protect everyone including those who might appear not to require any further protection.  So whilst there’s no law against giving someone a chance in the name of greater diversity, that’s only the case if they happen to be the best (or equal best) person for the job anyway.    

For further information about what this means for you, please contact Marcus Rowland.