HR professionals remember Wayne Rooney fondly (and mistakenly) as the name of the Rooney Rule. In fact he’s not the right Rooney.
The Rooney Rule was first taken up by NFL after a diversity initiative led by Mr Dan Rooney in 2003.
It was adopted by the Football Association (FA) earlier this year in attempts to boost diversity in the game.
This means that, when recruiting for senior coaching positions, the FA must interview a BME applicant.
Leadership 2025 has also promoted the adoption of the Rooney Rule.
So how can it be legal to insist on a BME applicant being interviewed for a position? Isn’t this discrimination in favour of BME candidates?
Confusion exists as to the differences between positive action and positive discrimination.
Positive discrimination, where one person is treated more favourably than another because they have a protected characteristic, is generally prohibited under the Equality Act 2010, unless an occupational requirement applies.
However, positive action is different.
Not just the adoption of the Rooney Rule but the whole of the Leadership 2025 programme is based on positive action, and it is lawful.
The law contains provisions concerning lawful positive action.
These are designed to apply where persons who share a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented.
An employer can, if it wishes, take any action which is a proportionate means of achieving the aim.
The aim must be to enable or encourage people who share the protected characteristic to overcome or minimise the disadvantage identified, to meet the needs identified, or to enable or encourage people who share the protected characteristic to participate in the activity in which they are under-represented.
Positive action in recruitment and promotion
As well as taking general positive action, employers can take positive action in recruitment and promotion.
This applies where an employer reasonably thinks that people who share a protected characteristic suffer a disadvantage connected to that characteristic, or where participation in an activity by people who share a protected characteristic is disproportionately low.
So, it can use the Rooney Rule.
Such action is only allowed if individuals are as qualified for a position as each other, the employer does not have a policy of treating people who share the protected characteristic (such as being BME) more favourably in connection with recruitment or promotion than people who do not share it, and the action is a proportionate means of achieving a legitimate aim.
What is proportionate action?
What is considered proportionate will depend on the seriousness of the disadvantage, the extremity of the need or under-representation and how else you can counter such need.
Employers should consider whether the action is appropriate to achieve the stated aim.
If it is, they will then need to consider whether the action is reasonably necessary to achieve the aim, or whether it would be possible to achieve the aim as effectively by other means that are less likely to result in less favourable treatment of others.
As the Rooney rule is adopted by more and more organisations, the evidence of its working builds and positive action becomes more usual and accepted.
So go, Rooney!