Positive action provisions could have negative effect

Positive action will enable employers to provide preferential treatment during the hiring process, but is this a good thing? Jackie Cuneen reports.

On 6 April 2011, the controversial positive action in recruitment under s.159 of the Equality Act 2010 finally comes into force. The Government has sought to reassure employers that positive action is not positive discrimination and it does not mean quotas for women and minorities.

However, this has left many employers wondering what it actually is. Employers that are conscious of their equality and diversity obligations, as well as tight budgets and recruitment freezes, will wonder what impact positive action will have on their recruitment decisions: positive, negative or indeed any.

The Equality Act prohibits discrimination against employees and job applicants on the basis of their protected characteristics. There are limited exceptions to this where there is a genuine occupational requirement for a position or in some disability cases. This will soon extend to positive action. Subject to various caveats, an employer who selects a candidate from a protected group will have a potential defence if their decision is ultimately challenged.

Section 159

In summary, s.159 provides that where an employer “reasonably believes” that a candidate with a “protected characteristic” suffers a “disadvantage or are under-represented” in the workplace, they can afford that person “more favourable treatment in relation to recruitment” than someone without that characteristic.

One candidate should be “as qualified as” the other, the employer should not advocate a “routine policy” of treating protected groups more favourably; and the action must be a “proportionate” means of achieving those aims. Finally, the action must not contravene any other part of the Equality Act.

Positive action in practice

The Government Equalities Office has published guidance on positive action, which contains some practical examples as referred to below outlining what an employer can and cannot do.

Before an employer can take positive action, it should have reasonable belief that protected groups are disadvantaged/under-represented in the workforce. It is potentially discriminatory to rely on perceived or associated characteristics and some are more self-evident than others.

Protected characteristics

  • Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation

Information or evidence will have to be obtained to support this belief. According to the guidance, this does not need to be sophisticated data or research. External sources such as the local job centre or labour surveys are cited.

However, there may be more stringent expectations of larger employers. Most employers will rely on internal records and enquiries potentially with input from management and/or employee representatives. This may be a more difficult exercise for employers who do not conduct equal opportunity monitoring and/or do not have such an obligation, for example, public bodies.

Many employers may monitor some but not all protected characteristics. Information may be difficult to obtain, particularly from a reluctant existing workforce, given its sensitivity and perceived stigma, for example in relation to sexuality or religion. Reassurances and guarantees would need to be given as to why it was required, confidentiality and data protection.

Good practice dictates that this information is collated only for equal opportunities monitoring outside of the recruitment decision. A candidate may now have to provide this information at the shortlisting or interview stages, either on a separate form or the monitoring form being disclosed. Employers and employees may be uncomfortable with this as it could invite perceptions of bias or prejudice into the process or deter candidates from applying.

The guidance defines disadvantage as barriers or obstacles that make it difficult for candidates to enter the workforce or for employees to progress. In reality, there would have to be a significant disadvantage/under-representation. The guidance gives an example of a predominantly female or male workplace. However, disparities often cut across a number of competing protected characteristics. If individuals opt out of disclosing information on protected characteristics, an employer may only be able to advocate positive action in relation to protected characteristics such as sex.

Types of positive action

Positive action is not entirely new. Employers may already make use of general positive action introduced under s.158 of the Equality Act in October 2010. This allows employers to offer counselling, mentoring, training or bursaries to disadvantaged protected groups at the pre-application stage.

Key aspects

  • Reasonable belief,
    under-represented or disadvantaged
  • “As qualified as”
  • Proportionate
  • Voluntary

This is distinct from and not to be confused with the more stringent s.159, which relates to the selection stage, ie where an employer is recruiting/promoting externally or internally, for example, redeploying within a restructuring/redundancy exercise. The guidance gives an example of favouring the inclusion of candidates from an under-represented protected group at the shortlisting stage. It emphasises, however, that it is more likely that positive action will be taken at the selection stage when the employer should be able to satisfy the equal merit test.

Caveats to positive action

Positive action must be a “proportionate” way of redressing disadvantage/under-representation in the workplace involving a balancing act of all relevant factors such as the impact that this decision will have on others. The guidance makes the point that some characteristics have different needs that could be overcome by using general positive action, for example, retraining for older employees. However, employers should be careful to avoid stereotypes.

Where employers have identified continuing disadvantage/under-representation of protected groups, they cannot routinely favour those groups. According to the guidance, employers can have a policy of “being prepared to use positive action” in a tie-breaker situation.

An employer must determine that the candidate is “as qualified as” the other. This is the most difficult concept and so the guidance refers instead to the candidates being of “equal merit”. Employers should not just focus on formal qualifications, but overall ability, competence and professional experience, as well as any other qualities that are necessary for the job.

Having higher academic or formal qualifications does not automatically mean that the candidate is better qualified for the purposes of positive action. The selection must be in relation to a specific job. The guidance gives the example of two candidates applying for a position of gym manager; one female with experience, no formal qualifications and the other male with formal qualifications, but no experience. The employer could conclude that these candidates were of equal merit and in this tie-breaker situation could recruit the male if men were under-represented. It is difficult to see, however, how experience versus qualifications can be compared in this way.

Employers often set minimum shortlist criteria for a job, but according to the guidance artificially low thresholds should not be set to produce wide selection pools. Candidates should not be considered as being equal, where another has exceeded a pass mark by a higher margin. Selection must be on merit. In reality, employers will rarely find themselves in a tie-breaker situation. When it comes to the actual selection decision, it is the subjective factors that often decide, for example, personal attributes or “fitting in”.

quotemarksHaving higher academic or formal qualifications does not automatically mean that the candidate is better qualified for the purposes of positive action.

Indirect discrimination

Finally, as employers will already be aware that they must not indirectly discriminate because of an individual’s protected characteristics, for example, a requirement for experience might discriminate against a younger graduate who is trying to get their first job unless objectively justified.

The recruitment process is difficult even for those employers that are motivated by good practice and promoting equality in the workplace. Positive action potentially creates further pitfalls. It is not easy for an unsuccessful candidate, particularly external, to challenge a recruitment decision. However, unsuccessful candidates can seek disclosure of interview records by way of a data subject access request or as a precursor to litigation. Inferences of unlawful discrimination can ultimately be drawn by tribunals in more extreme cases. Employers should be extra vigilant in the process followed and records kept if they want to advocate positive action.

Employers may feel uncomfortable from a PR perspective that positive action ultimately defines the successful candidate rather than merit. Conversely, some employers may welcome it as good PR and an opportunity to redress imbalances in the workforce profile, for example, in the public sector. Ultimately, positive action is voluntary. The reality is that we may not know what finally influences an employer’s recruitment decision. If recruitment is genuinely about merit, why would an employer openly publicise that it has taken positive action and lay itself open to a legal challenge when the decision is unlikely to be challenged by the unsuccessful candidate?

Jackie Cuneen is special counsel, employment, pensions and incentives at K&L Gates LLP.

XpertHR provides an overview of positive action in recruitment and promotion.

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