The positive action provisions in the Equality Act 2010 were implemented into UK law in order to help employers eliminate discrimination in the workplace. The provisions allow employers to take special measures aimed at lessening disadvantage or underrepresentation experienced by individuals with any of the protected characteristics, such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

If an employer finds that a certain protected group, e.g. disabled workers, are under-represented in their work place, they can lawfully choose to hire a disabled candidate over an equally qualified candidate who is not disabled for example. An employer may also choose to target job advertisements at certain protected groups, e.g. by placing advertisements in publications with a high readership by that group. Positive action could be used again when an employer is choosing between two candidates for a promotion; if there are fewer female managers than male, an employer has the option to choose the female worker over the male where both have the same skill-set.

Positive action is not the same as filling quotas or giving someone a job just because they are homosexual, disabled or from an ethnic minority; employers should remember that positive discrimination, which gives applicants from disadvantaged and under-represented groups preferential treatment in the recruitment process, regardless of their ability to do the job, remains unlawful. An employer cannot offer the job to a woman, purely to improve the company’s gender balance; this can only be done in ‘tie-breaker’ situations where the applicant’s gender is the only thing that can differentiate the two candidates.

It is important for employers to remember that the use of positive action is entirely voluntary and is not a requirement. If employers do decide to take positive action, they will need to ensure they comply with the requirements of the Act to avoid unlawful discrimination. This includes being able to argue that they have a reasonable belief that a particular group is underrepresented and that positive action is the best way to increase representation of that group.

For any further information regarding positive actions, please call our 24 Hour Advice Service on 0844 892 2772.