Q I am the HR manager for a large clothing business. We want to open up our recruitment strategy to include candidates with lower levels of education but are worried about how to implement positive discrimination correctly. How can we do this without opening the business up to discrimination claims?
A The general aim of the recruitment process should be to attract the best person for the job, regardless of sex, race, religion, age, sexual orientation or disability. The easiest way to do so is to set out what key skills and attributes the particular job requires and to assess the candidates on the basis of their ability to meet those requirements.
Your intention to open up recruitment to include candidates with lower levels of education does not require positive discrimination. If you do not consider that the job requirements include higher levels of education, you can simply state what the minimum education levels are, or that the position does not require any minimum qualifications. Or you may wish to take steps to remove any barriers, such as simplifying application forms.
The term ‘positive discrimination’ is generally used in reference to the practice by an employer of favouring candidates of a particular group based on a discriminatory ground. This is an unlawful practice except in relation to disability.
But in certain circumstances, ‘positive action’, which helps or encourages a candidate from a particular group to apply, is allowed. It would first have to be established that either the particular group in question is under-represented in the workplace or that the group would be particularly disadvantaged in taking up or doing the type of work in question.
Permitted positive action is limited to giving members of the disadvantaged group access to facilities for training that would help them meet the requirements for the particular work. Alternatively, an employer could take action to encourage members of the disadvantaged group to take advantage of opportunities for doing the particular work on offer.
It is proposed under the Equality Bill that employers will be allowed to positively discriminate, but only in very limited circumstances. If the proposals are carried through, the employer will be able to take under-representation of particular groups into account when selecting between two equally-qualified candidates. However, if there is automatic selection of under-represented groups, this will be unlawful, as will setting a quota for minimum recruitment of particular groups. The limited nature of the proposal has to be emphasised, as the selection of a less-well qualified candidate will also be unlawful.
Michael Ball, partner, Halliwells
