The BBC has been accused of discrimination after an internal email was leaked revealing that the Corporation is looking to recruit an "ethnically diverse" male reporter over the age of 30 for the One Show. The successful applicant should "ideally have a regional accent" and would preferably be someone who lives in Liverpool or Manchester, according to the leaked memo.

This follows recent headlines just two days ago where the BBC was accused of rejecting white applicants for two junior scriptwriting roles on a trainee scheme, as these positions were only open to people from "ethnic minority backgrounds".

Under the Equality Act, an employer must not discriminate against a job applicant on the basis of certain protected characteristics. This includes, amongst others, an applicant's race, age or sex. However, it may be lawful for an employer to require a job to be done by someone with a particular characteristic, if having that characteristic is an occupational requirement for the role. To rely on this exception an employer will need to show, having regard to the nature and context of the work, that having a protected characteristic is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim.

It is difficult to see how the BBC will be able to justify that recruiting someone with these specific characteristics is a genuine occupational requirement in these circumstances. There is no obvious reason why a female under the age of 30 from the South could not do the same role.

However, there is another alternative which is rarely used. An employer can take "positive action" in a small number of limited circumstances, either in a recruitment or promotion situation, or more generally. This includes positive action where an employer reasonably thinks that participation in an activity by persons who share a protected characteristic is disproportionately low.

Before any positive action can be taken, an employer will need to show that the person treated more favourably is as qualified as the other candidate and, again, that the action taken is a proportionate means of achieving one of a number of specified legitimate aims.

We understand that the BBC launched a diversity strategy earlier this year which aims to increase the number of women, black, LGBT and disabled employees at the Corporation by 2020. Reports suggest that the number of BBC workers from an ethnic minority is currently 13.4 per cent. This is already proportionately reflective of the 13.1 per cent of people living in Britain from ethnic minority backgrounds. However, the BBC may be able to show that there is not the same diversity amongst its presenters. This issue has certainly been in the press in recent years and this recruitment campaign may be attempting to address that directly.

We recommend that employers who wish to use positive action, either in recruitment campaigns or more generally, seek legal advice first. Any attempts that do not fall within the strict criteria allowed in the Equality Act will be ripe for challenge on grounds of discrimination.

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