Auntie answers your questions on positive action

Dear Auntie

Please help!
Miss Tified

Dear Miss Tified

As you will be aware, under the Equality Act 2010 it is unlawful for an employer to treat an employee less favourably than another because that individual has a ‘protected characteristic’ such as race, sex or age.  Positive action can be seen as an exception to this rule; the broad ‘positive action defence’ allows employers to address disadvantages suffered by certain groups or under-representation in the workplace.

Positive action in recruitment and selection seems to be the biggest concern for most employers. The key point to note is that the post should always be offered to the best candidates – offering a position to someone who is less suitable than other candidates just because they have a protected characteristic would be positive discrimination, which is unlawful.

The positive action provisions are voluntary; many employers have already indicated that the provisions are too convoluted and risky and that they do not therefore intend to use positive action.   Having said that, having a diverse workforce can deliver a number of benefits for organisations.  Recruiting from the widest pool of people will give you access to potentially more talented candidates with a wider range of skills and experiences.

Positive action in recruitment and promotion only applies where an employer reasonably thinks that persons with a particular protected characteristic (i) are disadvantaged; or (ii) have disproportionately low levels of participation in an activity.

Where this applies, an employer can treat a person with the relevant characteristic more favourably than others in recruitment or promotion, so long as:

a.           the person with the relevant characteristic is ‘as qualified as’ those others; and

b.           the employer does not have a policy of treating such people more favourably; and

c.           the positive action taken by the employer is a proportionate means by which to address the disadvantage or underrepresentation.

Contrary to recent suggestions in the press, this does not allow an employer to appoint a less qualified candidate simply because he or she has a particular protected characteristic; positive action will be used as a tie‑breaker only between candidates of equal merit.

If you intend to use positive action in recruitment and promotion, ask yourself these key questions:

Have I established that the criteria for using positive action exists?
You should not attempt to use positive action when making appointments until you are sure that you can meet the criteria for its use – that you can show that people with a particular protected characteristic are under-represented or otherwise disadvantaged – otherwise you will be risking acting unlawfully.

Are the candidates “as qualified as each other?”
Positive action will only be a defence if the candidates are ’as qualified as’ each other.  This can take into account candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job.  However, a person with higher academic qualifications will not automatically be deemed to be ‘better qualified’.  This is not always easy to judge, especially in relation to senior level appointments.

Is the action I am proposing to take proportionate?
The use of positive action must be proportionate; if the disadvantage or under-representation can be addressed by other actions then positive action may not be a proportionate step.

Conclusions

Having a transparent appointment process assessment will make employers less open to successful challenge.  The following steps should help:.

You will need to be able to show that:

• There is sufficient justification for you to have concluded that a particular group is under-represented or otherwise disadvantaged in the workforce.
• Your appointment process has objectively assessed the merits, skills, abilities and qualifications of each of the candidates.
• The action that you are taking is a proportionate way of addressing any under-representation or tackling disadvantage.
• The candidate you appoint is as qualified as any of the other candidates to do this particular job.
• You haven’t appointed someone just because they have a targeted characteristic.
• You don’t have a policy of routinely favouring people with certain protected characteristics.

Good luck!