When to allow ‘positive action’

21 January 2020 | Eleanor Greenwell

Many organisations have come to realise, mainly through the Equality Act 2010 and the media, the need to increase diversity within the workplace. Diversity is about respecting every person based on the 9 protected characteristics outlined in the Equality Act 2010. For clarity, the protected characteristics are, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Positive Action

With diversity in mind, companies with predominately white male staff have had to rethink their recruitment policy and to consider ‘positive action’. 

The definition of ‘positive action’ is to treat one person more favourably than another because they have a protected characteristic. Section 159 of the Equality Act 2010 allows employers to do this. It is lawful. This is commonly used within the recruitment/promotion process. For example, 2 accountant candidates, 1 white male and 1 Asian woman, equally qualified (similar competence skills, experience, qualification). The employer must think about taking positive action and what group is under represented within the company.  The employer can offer the job to the Asian woman based on low female BME group at work and having the right skills/experience. It is justified. 

Quota   

What an employer cannot do is to recruit a less skilled person simply because they fit a ‘quota’ i.e. is from a minority group but lacks the experience and expertise. Filling ‘quotas’ leads to positive discrimination, which is unlawful. This was apparent in the case of Furlong v Chief Constable of Cheshire Police Force 2018.  Here the Cheshire Police Force positively discriminated against new police recruits by simply ‘giving’ the job to applicants with protected characteristics. The new recruits lacked experience and qualification compared to their white male counterparts with the correct skills. This was wrong and led to positive discrimination. 

This area of law is complicated and can result in high risk decisions being made. To ensure compliance and a thorough understanding of what is or is not lawful please call the employment advice line on 0333 240 7208 or contact us here.

 

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