Legal Q&A: Positive action under the Equality Act 2010

Q What is positive action?

Positive action is one of the Government’s range of measures aimed at ending discrimination in the workplace under the Equality Act 2010. It can be used in two areas: “encouragement and training” (since October 2010) and “recruitment and promotion” (from April 2011).

In recruitment and promotion, it allows an employer, when faced with two or more candidates of equal merit, to select a candidate from a particular group (eg a particular racial group, age group or gender) that faces a disadvantage or is under-represented in its workforce over a candidate who isn’t from that group, to achieve diversity in its workforce.

Q Why is positive action necessary?

The concept of positive action was considered necessary, because some discrimination is so entrenched that merely prohibiting it is insufficient.

Positive action is just one of a range of measures an employer can adopt to address disproportionate representation amongst its workforce. Other measures might include reviewing recruitment or training practices to ascertain whether or not any criteria are being used that might be discriminatory and should be removed, or consulting with employee groups or a trade union about the needs of a workplace minority and how to increase representation. A positive action programme can be layered on top of these measures with guaranteed interview schemes for particular groups.

Q How does an employer identify if it needs to take positive action?

An employer that reasonably thinks that there is a need to increase diversity in its organisation should first obtain credible evidence to determine whether or not employees who share a particular protected characteristic are under-represented. For example, the employer could compare the proportion of its workforce that is of a minority group with national or local statistics. A company in London with only two black employees out of a workforce of 200 is likely to have more significant diversity issues to address than a company in Cornwall with the same statistics, because of the different make-up of the local populations.

Q How can positive action be taken in relation to “recruitment and promotion”?

Proposals for positive action in relation to recruitment and promotion received controversial media reports (for example: “white men face jobs ban”). The media were concerned that it would be used to recruit or promote someone less qualified than another, because they had a particular protected characteristic. This is incorrect.

As a matter of good practice employers may wish to take positive action measures to increase participation in their workforce from certain groups sharing a protected characteristic. If an employer considers that people with a certain protected characteristic are under-represented in its workforce, positive action allows it to address this by recruiting or promoting a candidate who has that characteristic, eg promoting a black candidate over a white one into a role where the employees are predominantly white.

However, the employer can only evoke “positive action” if it is faced with two candidates who are “as qualified as” each other. The principal of selection on merit remains key to recruitment or promotion decisions.

Q Who determines whether or not two candidates are “as qualified as” each other?

Positive action is exercised at the employer’s discretion. Determining whether or not candidates are “as qualified as” each other will be difficult if the relevant recruitment (or promotion) factors are mainly subjective. Few positions will be solely determined on objective criteria such as relevant qualifications; employers generally give greater weight to a candidate’s experience or other subjective qualities. Guidance on positive action published by the Government Equalities Office supports a wider interpretation of the phrase “as qualified as” because it says that candidates must be of “equal merit”, taking into account their overall ability, competence, professional experience and “any other qualities” required for the job.

Q What is best practice advice?

Clear and considered communication is important to avoid unlawful discrimination. Positive action should complement other diversity measures that employers adopt. If used in relation to recruitment or promotion, an employer will need to objectively justify any decision taken and possibly give feedback to an unsuccessful candidate. It is a useful measure, but one to be used with training since the reason for the final appointment may need to be transparent.

Emma Bartlett is a partner in the employment team at Speechly Bircham LLP