Equality Act News - positive action in recruitment and promotion

Peninsula Team

March 11 2011

Positive action was a familiar concept even before the Equality Act 2010 was introduced, allowing employers to take special measures aimed at lessening disadvantage or underrepresentation experienced by individuals with any of the protected characteristics e.g. age, disability, gender reassignment etc. However, it was not permitted to use positive action when recruiting or promoting someone.

The Equality Act 2010 changes that, and new provisions allowing positive action in relation to recruitment and promotion in Great Britain will come into force on 6th April 2011.

The new positive action provisions mean that it is lawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks:

•  the candidate has a protected characteristic that is underrepresented in the workforce; or
•  that people with that characteristic suffer a disadvantage connected to that characteristic.

However, positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is underrepresented or disadvantaged.

The general positive action provisions meant that an employer who had very few women on its senior management team could offer a development programme open only to women to help female staff compete for management positions. A man in the same company could not claim that this was discriminatory because it was allowed under the positive action provisions.

The new general positive action provision could be used when, after a stringent and objective recruitment process for a senior manager role, an employer finds that two applicants could do the job equally well, a ‘‘tie-breaker’ situation, and one is a man and one is a woman. If all the other senior managers in the company are men and the employer has to find some way of choosing between the two candidates, the employer could decide to give the job to the woman because women are underrepresented – a decision based purely on her gender. This would be allowed under the positive action provisions so the man would not be able to claim sex discrimination.

The employer couldn’t rely on positive action to give the job to the woman if the man would be able to do the job better. This would be unlawful discrimination against the man. Positive action for these purposes should only be used when the candidates are otherwise equally matched.

Previously, when an individual had a protected characteristic, it was prohibited for that characteristic to play any part in the recruitment or promotion process to prevent it from being used to the detriment of the individual concerned. However, that characteristic can now be considered, where the employer chooses. Using positive action is voluntary, so it is not a requirement that employers use it, but they can if they wish.

Positive action should only be used where it is a useful way of addressing the underrepresentation or disadvantage.

The provisions do not permit an employer to adopt a blanket policy on treating candidates with a particular protected characteristic more favourably than others who do not. Fast tracking individuals with a protected characteristic is therefore not permitted by the Act.

For more information on positive action, please call our 24 Hour Advice Service on 0844 892 2772.

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