Positive action in recruitment and promotion: frequently asked questions

Caroline Noblet of Squire Sanders Hammonds continues a series of articles on positive action in recruitment and promotion with some frequently asked questions that look, among other things, at the conditions that must be satisfied for the positive action provisions to apply and the risk to which employers may be exposed if they take positive action in recruitment or promotion. 

When do the positive action provisions relating to recruitment and promotion in the Equality Act 2010 come into force?

The new positive action provisions relating to recruitment and promotion, which are set out in s.159 of the Equality Act 2010, come into force on 6 April 2011. They enable employers to take positive action when they recruit or promote employees, in limited circumstances only and provided that they meet specific conditions (see Positive action in recruitment and promotion: overview in this series for more details). The provisions in s.159 are in addition to the general positive action provisions contained in s.158 of the Act. The latter, which came into force on 1 October 2010 with the majority of the Act, largely replaced the positive action provisions in the previous anti-discrimination legislation.

Are employers required to take positive action in recruitment and promotion?

No. Use of the power to take positive action in recruitment and promotion is voluntary. However, as a matter of good business practice, employers may want to take positive action measures in recruitment and promotion to help alleviate any disadvantage experienced in the labour market by groups sharing a protected characteristic or to reduce their under-representation in the workforce.

In what circumstances do the positive action in recruitment and promotion provisions apply?

The positive action in recruitment and promotion provisions apply only where the employer that intends to take positive action reasonably thinks that people who share a protected characteristic suffer a disadvantage connected to that characteristic, or that they are under-represented in the workforce.

Other specific conditions (in s.159(4) of the Equality Act 2010) must also be met, namely:

• the chosen candidate must be "as qualified as" other candidate(s) for recruitment or promotion;
• the employer must not have a policy of treating people with the particular protected characteristic more favourably in connection with recruitment or promotion than those who do not; and
• the more favourable treatment must be a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation.

What is the main risk for an employer that applies the positive action in recruitment and promotion provisions?

The main risk for an employer that applies the positive action provisions in s.159 of the Equality Act 2010 is a claim of unlawful direct discrimination by an unsuccessful applicant for recruitment or promotion made on the ground that the employer did not meet the specific conditions needed for it to be able to take positive action. Provided that the employer meets the necessary conditions for the positive action provisions to apply, it will not be committing unlawful discrimination and, as a result, should be able to defend a subsequent discrimination claim by the unsuccessful applicant. The employer must reasonably think that people who share a protected characteristic suffer a disadvantage connected to it, or that they are under-represented in the workforce. The more favourable treatment of the chosen candidate over other candidate(s) of equal merit must be a proportionate means of achieving the aim of helping to reduce the disadvantage or addressing the under-representation. The difficulty for employers will be that these requirements place a considerable evidential burden on them to justify why their actions were reasonable and proportionate. Under s.159(4) of the Act, they will also need to be able to show that the candidate in relation to whom positive action was taken was "as qualified as" the unsuccessful candidate(s) (referred to as "equal merit" in Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (PDF format, 338.43K) (on the Government Equalities Office website)). This is also likely to be difficult, particularly as "as qualified as" is not defined (see Positive action in recruitment and promotion: overview and Positive action in recruitment and promotion: practical implications in this series for more details). If any of the conditions is not met, the employer will be badly exposed to a potentially successful discrimination claim.

What is the difference between positive action and positive discrimination?

A key difference between positive action and positive discrimination is that positive action is lawful (provided that the employer meets the conditions set out in ss.158 or 159 of the Equality Act 2010), whereas positive discrimination, generally, is not. In the recruitment context, unlawful positive discrimination would be where an employer recruits a person because he or she has a relevant protected characteristic rather than because he or she is the best candidate. It is also unlawful, for example, to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic. There are circumstances in which it is lawful to require a job applicant or worker to have a particular protected characteristic, for example where an occupational requirement applies. However, these circumstances are rare.

Are employers able to use both the general and the recruitment and promotion positive action provisions?

Yes. The general positive action provisions in s.158 of the Equality Act 2010 can be used separately from, or together with, the specific positive action provisions in s.159. For example, in addition to taking positive action in recruitment and promotion under s.159, an employer may try to increase its workplace representation of employees with a particular protected characteristic by having some form of targeted advertising, or providing training aimed at helping employees with a particular protected characteristic who are disadvantaged in the workplace.

What are the advantages for employers of taking positive action?

According to the Equality and Human Rights Commission (EHRC) Statutory code of practice on employment (PDF format, 1.09MB) (on the EHRC website), the potential benefits for employers of taking positive action measures include:

• "a wider pool of talented, skilled and experienced people from which to recruit;
• a dynamic and challenging workforce able to respond to changes;
• a better understanding of foreign/global markets; [and]
• a better understanding of the needs of a more diverse range of customers - both nationally and internationally".

An employer that is recognised as one that takes positive action may also be perceived externally as one that is progressive and prepared to contribute to the general wellbeing of society. This may be relevant when it tenders for contracts, particularly from public sector organisations.

Next week's topic of the week article will be more frequently asked questions on positive action in recruitment and promotion and will be published on 28 March.

Caroline Noblet is partner and global co-head of employment at Squire Sanders Hammonds (caroline.noblet@ssd.com).

Further information on Squire Sanders Hammonds can be accessed at www.ssd.com.