The head of Ofsted wants schools to discriminate on the basis of race when hiring teachers.
Sir Michael Wilshaw said that in some cases, he would hire an equally qualified person from an ethnic minority over another. But in law, this isn't 'discrimination'.
"Discriminate against white teachers to ensure 'ethnic mix', says Ofsted chief Sir Michael Wilshaw" - Daily Telegraph, 7 January 2015
Several newspapers, as well as the BBC, have reported on comments made by the Chief Inspector of Schools in England, suggesting that he supports "positive discrimination" in recruiting teachers. Sir Michael Wilshaw said, in the context of ensuring that teaching staff reflect the ethnic diversity of their pupils, that
"If I had two people applying for a job of equal merit and I felt we needed to increase the number of teachers from ethnic minority backgrounds to the staff then I would apply positive discrimination—as long as the two people were of equal merit."
The Department for Education has responded that "positive discrimination is not permitted" by law. So did Sir Michael advocate illegal hiring practices?
An employer cannot refuse to hire someone who is qualified just because they are white. The Equality Act 2010 prohibits discrimination against people on the basis of various characteristics, including race (which includes colour, nationality and ethnicity). This includes discrimination in employment.
The Act does, however, permit what it calls 'positive action' in employment. This essentially means that employers who reasonably think a group of people are disadvantaged because of a 'protected characteristic' (such as race) can take steps to help them "overcome or minimise that disadvantage".
But when it comes to hiring or promoting people, this 'positive action' is only allowed when choosing between people that are equally qualified for a job. In addition, employers can't have a general policy of automatically favouring people who share a protected characteristic, by applying less stringent standards to them or enforcing a hiring quota.
When it comes to hiring decisions, positive action can only be used as a "tie-breaker".
As the Law Society puts it: "Positive action is not ... positive discrimination or quotas. These are unlawful". Positive discrimination would mean hiring less qualified people because they are from an ethnic minority, which the Act makes clear isn't allowed.
The Police Service of Northern Ireland is an example of how positive discrimination (rather than positive action) operates. It used to apply a hiring quota so that half of recruits meeting minimum requirements had to be Roman Catholics. This required specific legislation; the Equality Act (which doesn't apply to Northern Ireland anyway) wouldn't allow it normally.
So it's clear that what Sir Michael described is a legal approach: remedying the problem— in his view—of having too few ethnic minority teachers on staff by using race as a tie-breaker between two candidates of equal merit. It's 'positive action'—he just labelled it, a little loosely, as 'positive discrimination'.
And given the specific scenario he outlines, there is nothing to suggest that he favours any change in the law to allow actual positive discrimination.
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