Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Legal Q&AEquality, diversity and inclusionPositive action

Weekly dilemma: Positive action

by Personnel Today 13 Apr 2011
by Personnel Today 13 Apr 2011

I’d like to provide more opportunities for women to work in my heavily male-dominated business, and I understand that new provisions allow me to do this. What can I do, and how do I do it?

Your starting point is the unsurprising conclusion that if you recruit a woman because she is a woman and not because she is the best candidate, you are heading for trouble. Discrimination is discrimination, and your very laudable intentions do not alter that.

But wait, I hear you cry, what of the new positive action provisions under s.159 of the Equality Act 2010? Don’t they allow me to favour any protected group that I believe to be under-represented or disadvantaged in my workforce? Will s.159 not help me achieve my aim? In practical terms, the answer is no. Neither s.159 nor the voluminous accompanying Government Equalities Office guidance gives any hint of the essentially flawed nature of the positive action scheme as it relates to recruitment and promotion.

The problem is this: to be entitled to pick a woman rather than a man just because she is a woman, you need to satisfy two conditions. First, the two candidates for recruitment must be “as qualified as” each other (s.159) or “of equal merit” (the Guidance). How often, genuinely, have you had two candidates and absolutely no preference between them, a selection you could as well make by the tossing of a coin? The Guidance gives the example of one employee with experience of the role sought but no formal qualifications, as against another with less experience but certificates up to the eyeballs. The increasingly sceptical reader is asked to believe that the employer would have no preference between them, so for present purposes let us make that assumption.

The second condition is that you must reasonably believe that employees of the protected characteristic in question, here gender, are under-represented in the workplace. What is not clear is which workplace. Clearly you know already that men are the majority in your own organisation, but the Guidance suggests also that local or national figures may be relevant. This leads to the bizarre conclusion that you might be able to use national imbalances to apply positive discrimination in a workplace that was already balanced.

If the man you reject because he is a man takes that decision badly, then he can challenge any part of the process. He can claim that he is better qualified than the woman you hired. Neither s.159 nor the Guidance indicates whose view prevails here – is it an objective question to be weighed by the Employment Tribunal, or an issue for the subjective but reasonable belief of the recruiting employer? One thing is clear: if you appoint the woman on the basis of positive discrimination, it is not then open to you in the face of challenge by the man to argue that she was the better candidate anyway. People are either “as qualified” as each other or they are not; so you cannot start on one basis and then switch to the other when the wheels come off.

In summary, there are two salient points. First, if you are going to use s.159, do keep the clearest possible notes in support of your conclusions both that the candidates are of equal merit and that female candidates are at the required disadvantage. Second, although the Guidance makes it clear that use of the positive discrimination provisions is voluntary, you can imagine how easy it would be for the unsuccessful candidate to argue that a decision not to use them was itself discriminatory. In other words, even if you take the view that the hurdles attached to a successful use of s.159 are too great, you still need to keep the records to show why you picked the candidate you did.

David Whincup, partner and head of employment, London, Squire Sanders Hammonds

Get answers to more questions on positive action:
  • How do the positive action provisions in the Equality Act 2010 that relate to recruitment and promotion work?
  • Given that no two applicants will be identical in terms of their suitability for a post, how can employers show that they are as qualified as each other?
  • At what stage of the recruitment process should employers make the decision to take positive action?
Avatar
Personnel Today

previous post
April 29: A right royal wedding dilemma
next post
Introduce league tables for employment tribunals, says CBI

You may also like

‘Inequality is embedded in our labour market’ says...

27 May 2022

Breaking the bias – how to make a...

26 May 2022

Women in FTSE 350 leadership: ‘A lot of...

20 May 2022

City firms pledge to improve social mobility in...

20 May 2022

Ethnic diversity: report highlights disparities in school leadership

18 May 2022

Gender equality facing growing backlash from male managers

16 May 2022

Lack of flexibility pushes half of women to...

16 May 2022

Ethnicity pay gaps: Not making reporting mandatory is...

16 May 2022

How to build a compelling talent attraction strategy...

12 May 2022

Women in finance: Aviva CEO slams sexist comments...

11 May 2022
  • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+