Positive Action not Positive Discrimination
People often talk about how certain groups are under-represented within workforces, but what steps can an employer take to redress this? Director and Head of Employment Law at Banner Jones Solicitors, Katie Ash, discusses how employers can use a Positive Action approach to help these groups access employment or training as outlined in the Equality Act 2010.
Crucially, employers should understand that Positive Action does not mean Positive Discrimination. Positive Discrimination is the act of treating someone more favourably because they have a protected characteristic, and is generally unlawful under the Equality Act 2010. There are some exceptions to this rule, including where an occupational requirement applies or reasonable adjustments are being made to help a disabled employee.
There are 9 protected characteristics in the Equality Act 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Positive Action, on the other hand, is lawful under the Equality Act 2010 and allows employers to take positive, proportionate, steps to help remove barriers people with a particular characteristic face without opening themselves up to discrimination claims if:
- They’re disadvantaged in some way in relation to work;
- Their participation in employment or training is particularly low;
- They have particular needs which are different from other people who don’t share their protected characteristic.
What this means in practice is that employers can help people with a particular protected characteristic overcome the disadvantage and can encourage participation of these individuals in employment or training.
With regards to recruitment and promotion, controversially, the Equality Act 2010 allows employers to rely on Positive Action to take a person’s protected characteristic into account when deciding who to appoint or promote. Positive Action applies to a job if people with a particular protected characteristic are at a disadvantage or are under-represented in the workforce and the applicant with the protected characteristic is equally qualified with other applicants.
Critics of such action argue that it is not fair to provide employment to someone because they are essentially the minority, but Positive Action allows employers to redress imbalances in their workforce, for example with regards to race or gender, the latter of which is frequently in the news with companies being urged to ensure that their boardrooms are more representative and include more women.
There are practical difficulties in adopting a Positive Action policy and so employers considering using Positive Action to address imbalances in their workforce should tread carefully to ensure that any steps taken satisfy the legal test and are capable of standing up to scrutiny, particularly with subjective judgements which could be open to challenge by an unhappy, unsuccessful candidate. Employers should also take legal advice and ensure that they have considered the information and guidance regarding Positive Action issued by the Equality and Human Rights Commission in their Employment Statutory Code of Practice.