Is the public sector failing at Diversity?

The Civil Service Capabilities Plan, published in April 2013, emphasised the Civil Service's commitment to diversity and equality, and acknowledged that it needs to be representative of the public it serves. But how can public sector organisations increase ethnic representation at all levels - including management and leadership positions at times of downsizing, without breaking the law?

Representing the communities served is particularly important in public sector roles that involve face to face contact with the public and critical where that contact can be confrontational such as Police Service, Prison Service, HM Revenue and Customs and Department of Work and Pensions.

Metropolitan Police Assistant Commissioner, Simon Byrne recently told the Guardian that the Met were considering a "50-50" positive discrimination of the kind pioneered in Northern Ireland. Although there are differing views on whether this type of positive discrimination is the right thing to do or not, I wholeheartedly applaud the Met pushing the boundaries on this issue and challenging thinking on current legislation.

In the meantime, while the debate continues, public sector organisations must ask themselves the question - are we doing enough within currently legislation? And, importantly, then give themselves an honest answer, which in some case will be "I suppose not". So, are organisations copping out, and taking the easy way out by doing what has always been done or is it really impossible within current legislation?

At the Civil Service Live conference on 2/3 July, when speaking about the Civil Service having increased its productivity and begun to reform, cabinet secretary Sir Jeremy Heywood told the audience that in order to create a Civil Service that's open, unified, and skilled, civil servants must be "confident; not afraid of contestability; not afraid of challenge". Civil Servants are often criticised for being risk averse and not thinking sufficiently long term.

I'm sure all public sector organisations will be either undertaking or actively considering positive action initiatives such as internal learning activities (referred to in The Civil Service Capabilities Plan) or recruitment outreach work as the Met Police have been doing for many years. These activities have only proven to go a part of the way to improving representation levels at times of growth but in these times of contraction, something different needs to be done.

An example of pushing the positive action boundaries is one employed for some years by one organisation is in advancing the posting of newly recruited ethnic minority staff. To explain - this is not about interfering with the selection process. Appointing on merit but then creating a reserve pool and drawing from that as vacancies arise, but giving priority to those from groups that where the comparison between the current make up of staff and that of the local community shows a mismatch. This, amongst other things, mitigates the risk of attrition from the reserve pool of the very people organisations will have worked hard to attract.

Yes, it will be argued by the more risk averse that this is unlawful but I know that the approach was challenged when first adopted by the organisation referred to above and it was successfully argued that it was not.

We must also keep in mind that recruitment is often only partially about filling the existing vacancies. It is often forgotten by the more short term focussed organisations, that it is also selecting the leaders and managers of the future. I expect very few if any organisations would wish to recruit all their leaders and managers externally, therefore, if you do not increase the diversity of your management/leader internal promotion pool when you get the chance, you can never improve representation levels at the more senior grades without significant changes to current legislation.

The recruitment process is only one example where organisations could push the boundaries of legality. There will of course be others. The line between positive action and positive discrimination is very fine, I would argue.

So, let's take a chance, be confident and not afraid of contestability or challenge. Let's think more long term. Push the boundaries of legality. And if in the public sector we lose an ET because we have honestly tried to make our staff more representative of the community we serve, is that such a bad thing?