Equality Act – positive action provision

What’s the difference between positive action and positive discrimination under the Equality Act 2010?

The single Equality Act 2010 replaced and simplified a previous jungle of anti-discrimination laws and also contains new provisions intended to tackle discrimination and inequality. On 1 April 2011 new positive action provisions relating specifically to recruitment and promotion came into force.

The provisions mean that it is not unlawful 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 unrepresented in the workforce;
  • or that people with that characteristic suffer a disadvantage connected to that characteristic.

The ‘protected’ characteristics are: age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity.

Positively preferring someone who shares a ‘protected’ characteristic over another equally qualified person without that characteristic must be a proportionate means of overcoming or minimising the disadvantage suffered by people with that characteristic.

In order to use the positive action provisions, the employer has to establish that the candidates are of equal merit. Usually this is achieved by assigning a numerical score to candidates based on a number of objective criteria such as ability, competence, experience and qualifications.

An employer who decides to use the positive action provisions does need some evidence that people with that particular characteristic are under represented in the workforce, or at a particular level of the organisation. This can simply involve looking at the profiles of the workforce or easily available national data.

Some protected characteristics are more easily identifiable then others – gender is probably easier to establish than a candidate’s religion or belief or sexual orientation.

The decision to use positive action must be ‘proportionate’. That means balancing all the relevant factors, namely the seriousness of the disadvantage suffered or the extent to which with a protected characteristic are unrepresented against the impact the proposed action may have on other people.

The positive action provisions do not permit a policy which routinely favours candidates with a certain protected characteristic, even if there is evidence of under representation or disadvantage. The requirement to consider all suitably qualified candidates on their individual merits still remains. The best qualified candidate can be still be offered the post.

Only when there are ‘equally qualified’ candidates, and one has a protected characteristic, which means that they are disadvantaged (on reasonable evidence) can that person can be preferred for employment or promotion.

Positive action has to be differentiated from positive discrimination.

Positive discrimination involves recruiting or promoting someone solely because they have a relevant protected characteristic. That is still unlawful. Positive action is permitted where there are equally well qualified candidates, and one of them is from a group with a protected characteristic which is subject to a disadvantage.

Positive action is voluntary. An employer does not have to justify the fact that s/he has decided not to use positive action.

The candidates who are not appointed are probably most likely to challenge the use of positive action.

If challenged, what employers will need to be able to show is:

  • they have reasonable grounds for believing that a particular group was unrepresented or otherwise disadvantaged in a workforce;
  • the appointment process objectively assessed the merits of the candidates;
  • the action is a proportionate way of addressing under representation;
  • the candidate appointed is as qualified as any of the others to do the job.

The intention of the legislation is to ensure that every individual has an equal opportunity to participate in society and that inequality of income, wealth and power changes in a positive way over time. The Government’s labour force survey in 2008 showed that a person from an ethnic minority was 13% less likely to find work than a white person. The Equality and Human Rights Commission’s Equalities Review found that Muslim men were more than twice as likely to be unemployed as Christian men. For an employer delivering a service, the positive action provision can ensure that it is accessing all the talents in society, and potentially employing those who have insight into the needs of a particular range of service users.