With the various anti-discrimination laws to take into consideration, how can recruitment agencies embrace diversity in their own employment practices without falling into the trap of positive discrimination?

Ironically, the more imaginatively UK employers try to enhance diversity in their organisations, the more likely they are to risk breaching anti-discrimination law. The recruitment process is often at the frontline of this tension.

The legal challenge
Setting and implementing gender or race equality targets in recruitment is dangerous. There is not enough awareness of the legal risks that come with innovating and the recruiter is often drawn into the problem.

For example, a media furore followed the launch of Rare Recruitment, an agency specialising in placing ethnic minority people. Avon and Somerset Constabulary was forced to abandon a 'pioneering positive action campaign' aimed at recruiting female candidates and those from black and minority ethnic communities when complaints brought to light that it contravened the Sex Discrimination Act 1975 and the Race Relations Act 1976.

What is easy to overlook is that the scope for lawful positive action in much of UK and EU anti-discrimination law is very narrow. For example, the main positive action provisions in the Race Relations Act 1976 provide only for targeted training and encouragement, and only where members of the racial group in question are under-represented in "work of a particular kind".

Not only can it be difficult to prove that these requirements are met, if challenged, but it must be remembered that the law does not permit an employer to recruit someone because they are of a minority ethnic background, even if they have set targets for improving representation in the workplace: at the point of recruitment, the employer is required to be colour-blind. Rather than being praised for promoting equality, progressive employers could find themselves liable for unlawful discrimination. Where this happens, the recruiter risks being joined in an action for unlawful discrimination.

The legal pitfalls
The current law gives mixed messages about equal treatment and positive action. For example, under the Disability Discrimination Act 1995 an employer is required, in effect, to discriminate in favour of disabled staff and candidates by making "reasonable adjustments" so as to remove substantial disadvantage. Furthermore, the structure of the DDA is such that it actually permits an employer directly to discriminate in favour of a disabled candidate or employee. So there is nothing to prevent an employer deciding only to short-list or recruit a disabled person for a job. This is because the DDA is based on a positive discrimination model.

New positive duties on public authorities steer those employers towards taking positive action, but only within the limits of the current law. The complexity and changeability of anti-discrimination law can make it hard for employers to extract clear, consistent and coherent messages about how they, or their employees, should behave.

Conclusions
Employers can and will increasingly want to put diversity strategies in place and will be giving that message to recruiters. They should check them for legal validity. They should recognise that special measures can be adopted only for those groups where legislation has already provided the means for positive discrimination (the disabled, mothers who are pregnant or on maternity leave, some carers). They can and should consider positive action measure to encourage greater participation by under-represented groups. The challenge for the recruiter is to implement the forward thinking employer's strategies without falling foul of the law.

Sue Ashiany, Head of employment department at law firm Nabarro