Is the Rooney Rule lawful in the UK?
The Rooney Rule is an important rule implemented by the American National Football League (the NFL) in 2003 and named after the late chair of its diversity committee, Dan Rooney.
Originally, the rule required NFL teams to interview one BAME candidate for head coaching roles, but since 2020 NFL teams are now required to interview two BAME candidates for head coaching roles and one BAME candidate for coordinator, operational and front office roles too. When implemented, African American coaches increased from 6 per cent to 22 per cent.
The UK
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Here in the UK, the Football Association (FA) and the English Football League have introduced their own versions of the rule and FA’s Equality in Football Leadership Code has been set up to help with underrepresentation of BAME coaches and managers in the game. Unfortunately, these current rules are generally perceived as being ineffective, with only five BAME managers across 91 clubs in the EFL and Premier League in total in June 2020.
There is an argument about whether the Rooney Rule should be adopted on a widespread basis in the UK and how that balances the nuance between positive discrimination and positive action.
Positive Discrimination vs Positive Action
The positive discrimination rule is often misunderstood, and there is a delicate line between what is legally allowed in the UK and what is not. In short, positive discrimination is generally prohibited and positive action is generally permitted.
Positive discrimination is where you treat a person or group more favourably because of a protected characteristic (such as race or ethnicity). This is usually deemed illegal, apart from certain exceptions such as occupational requirements for roles and any proportionate means of achieving a legitimate aim. For example, a Catholic church requiring a Catholic priest, or an actor of a particular race or ethnicity required for a role for authenticity reasons. That said, with casting of Noma Dumezweni as Hermione Granger in the Cursed Child and the possibility that Bond may be played by Idris Elba, the authenticity angle may be open to further challenge.
Positive action covers lawful measures, permitted under the Equality Act 2010 to remedy disadvantage or underrepresentation caused by a protected characteristic (such as race or ethnicity). In the UK, HR will more frequently see this in recruitment in line with s13(3) of the Equality Act which says that in cases of direct discrimination, it is not discrimination to treat a disabled person more favourably than you might a person without a disability.
Making sure you take positive action
To ensure that the actions HR take fall within positive action, rather than discrimination, it is important to act within the prescribed framework of the Equality Act to address inequality. This might include “general action” to increase an employer’s talent pool, or “positive action” in relation to recruitment and promotion.
The emphasis for HR and employers in each case is proportionality, which may ultimately depend upon the seriousness of the disadvantage, the extremity of the need or underrepresentation, and alternative means to counter them. The example of underrepresentation of BAME coaches and managers in football given the number of BAME players, is the type of disadvantage that demonstrates the requirement and potential justification for positive action.
This “general” action will mainly include actions which do not impact negatively on those people who do not share the protected characteristic.
HR teams will need to show that there is a reasonable belief that a group who share a protected characteristic such as race or ethnicity:
- suffer a disadvantage connected to that characteristic,
- have needs that are different to those who do not share it; and
- participation in and activity by people who share the characteristic is disproportionately low
They will need to provide evidence to substantiate this belief, but it does not have to be a sophisticated statistical data or research driven approach and will vary depending on the employer’s size and resources.
Ultimately, employers must act with the legitimate aim of:
- enabling or encouraging members of a group to overcome or minimise any disadvantage
- meeting those different needs
- enabling or encouraging members of the group to participate in the activity
Employers will also need to ensure that actions taken are a proportionate means of achieving a legitimate aim. For example, relevant training and reserving spaces on the courses for members of an underrepresented group, providing mentoring for members of the group, targeting schools or colleges with higher numbers of an underrepresented group or even targeted social media advertising.
The law in the UK even goes a step further, and permits an employer to treat one candidate more favourably than another because they hold a protected characteristic that the other does not in certain circumstances, sometimes known as a “tie breaker”. This was considered for the first time in Furlong v Chief Constable of Cheshire Police [2018] UKET where Cheshire Police were not able to demonstrate that the steps they took were positive action. Although this decision is not binding, it is a good indication of how cases of this nature will be decided and what tribunals will look for.
If employers do seek to use the “tie breaker” permitted under s159 Equality Act 2010 they have to ensure that they meet certain requirements.
- The employer must have the (i) reasonable belief, (ii) legitimate aim, and (iii) must act proportionately
- The preferred candidate must be as qualified as the other candidate to be recruited or promoted
- The employer must not have a policy of treating members of the protected group more favourably
Practical steps
On a practical level, if HR teams are seeking to implement positive action there are steps they can take to achieve this:
- Decide upon and record clear objectives and rationale for those
- Maintain effective and accurate workforce monitoring, and collate general data for the sector in which you operate so as to monitor and identify underrepresentation
- Ensure that, where possible, personnel decisions are evidence based
- Complete regular reviews of any measure or action put in place; the longer that action is left in force it may no longer be viewed as proportionate or required
- Maintain clear recruitment and selection policies
- Review the use of the tie-breaker clause in any recruitment situation
While the Rooney Rule has worked for the NFL, in the UK, being clear on the difference between positive discrimination and positive action is essential. Only then can HR be sure to abide by the Equality Act and reap the benefits of a more diverse and inclusive talent pool, without the risk of discrimination.
Barry Ross is Director of Crossland Employment Solicitors. Barry Ross has been practicing Employment Law since 2006 when he worked in-house for major legal expenses Insurance provider, DAS, to provide employment law advice across a whole spectrum of issues to a number of commercial and individual clients. Barry’s experience in private practice working exclusively in employment law includes drafting contracts, policies and procedures, along with providing day-to-day commercial advice on all employment issues including discrimination, unfair dismissal, breach of contract, TUPE, whistleblowing and redundancy. He regularly advises on claims in the Employment Tribunal for both Claimants and Respondents using his combined experience to benefit his clients.
