Creating a fairer Britain
‘Positive action’ means the steps that you can take as an employer to encourage people from groups with different needs or with a past track record of disadvantage or low participation to apply for jobs.
Exceptions where a particular protected characteristic can be looked at during recruitment but which are not the same as positive action
In recruitment, equality law allows positive action before or at the application stage. At this stage, the steps could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants).
An example of when an employer might decide to take positive action is if they find that the make up of their workforce is different to the make up of the local population, so they decide to encourage people who share particular under-represented protected characteristics to apply for vacancies.
This is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow.
Taking positive action is voluntary. You do not have to take positive action. However:
Equality law says that you have to go through a number of tests to show that positive action is needed.
The tests say that the steps you are allowed to take as part of positive action must:
An education employer could not use positive action to attract women applicants for an entry level primary teaching post where women already made up 70 per cent of the teaching workforce. Since the steps would not be being taken to overcome a disadvantage or under-representation this would be unlawful direct discrimination.
However, the employer could use positive action to recruit more men as they are under-represented in this workplace.
You must not have a blanket policy or practice of automatically treating people who share a protected characteristic better than those who do not have it. You must still appoint the best person for the job, even if the best person does not have the particular protected characteristic you are targeting.
A local fire service identifies from its monitoring data that women are under-represented as firefighters. The service makes clear in its next recruitment exercise that applications from women are welcome and holds an open day for potential women applicants at which they can meet women firefighters. However, the fire service must not guarantee that all women will get through the initial stages of the application process, regardless of their suitability.
Positive action may make people who do not have the particular protected characteristic feel they have not been given the same chance to apply for a job. It is a good idea for you to explain why you have decided to use positive action. This involves showing specific disadvantage or under-representation and that you are not doing more than is needed and proportionate to tackle those problems
As well as these exceptions, equality law allows you to treat a disabled person better – or more favourably – than a non-disabled person. This recognises that disabled people generally face a lot of barriers to participating in work and other activities. You can choose to treat a disabled job applicant more favourably even if they are not at a disadvantage due to their disability in the particular situation.
An employer has a policy of shortlisting and interviewing all disabled applicants who meet the minimum requirements for their jobs. The law would allow this. It would not be unlawful discrimination against a non-disabled applicant who also meets the minimum requirements but is not shortlisted.
Examples of what you might do (depending on the protected characteristic you are targeting), which would count as positive action, include:
A nursery with an all-female staff includes a statement in its job adverts to say ‘We welcome applications from men as they are currently under-represented in our workforce’. However, if a man applies for a job who is less well-qualified than a woman who applies (in terms of meeting the requirements of the person specification), the nursery must appoint the better qualified woman.
Remember you will need to consider if such measures are needed and are proportionate. You should regularly review what you are doing to make sure positive action is still appropriate.
The other positive action step you can take is to decide to appoint an applicant from a group sharing a protected characteristic if you reasonably believe this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low. You should be able to show there is some information or evidence to support your belief, but it does not need to be sophisticated data or research. You could just review the profile of your own workforce or the sector as a whole. National labour force surveys may be a useful resource.
You can only use these ‘tie-break’ provisions when faced with a choice between two candidates who are as qualified as each other. It is also possible, though it would be unusual, that a tie-break situation could arise where more than two candidates were equally qualified for the post.
Although it is most likely that you would use the tie-break provisions at the end of the recruitment process, you can also treat an applicant more favourably at any earlier stage of the process. But remember you can only use these provisions if it is a proportionate way of enabling or encouraging people from the disadvantaged or under-represented group to overcome or minimise the disadvantage of that group.
A housing advice service has no Muslim employees, even though it is located in an area where there is a high Muslim population. When a vacancy arises, there are two candidates of equal merit. One candidate is Muslim and the other is not. The advice service could choose to offer the job to the Muslim candidate under the positive action provisions, so that the non-Muslim candidate could not claim religious discrimination.
The phrase ‘as qualified as’ is not defined by the law, but you should give it a broad meaning. You should do a full and objective assessment of each applicant’s suitability, skills, qualifications (professional and academic), competence and professional performance, matched against a set of objective criteria for the job.
You must not have a general policy of treating people with the relevant protected characteristic more favourably in connection with recruitment.
You can use positive action where you reasonably think (in other words, on the basis of some evidence) that:
Sometimes the reasons for taking action will overlap. For example, people sharing a protected characteristic may be at a disadvantage and that disadvantage may also give rise to a different need or may be reflected in their low level of participation in particular activities.
To deal with the three situations, you can take proportionate action to:
You can only decide to use positive action if you reasonably think that a group of people who share a particular protected characteristic is under-represented or disadvantaged or has different needs.
You will need to have some evidence to show that your belief is reasonable, but it does not need to be sophisticated statistical data or research. For example, you could look at the profile of your workforce and compare it to several comparable employers in your area or sector.
Other information can be used as well – it does not have to be information you have gathered for yourself.
National research shows that disabled people are under-represented in working in the hotel and hospitality industry. A hotel chain decides to tackle this under-representation by holding an open day targeted at disabled people.
You can target more than one group with a particular protected characteristic provided that for each group you have reason to believe there is disadvantage, different need or low participation.
The law does not define ‘disadvantage’ but it is generally understood to relate to barriers or obstacles which make it difficult for a person to enter into, or make progress in, a trade, sector or workplace.
A requirement to work full-time may act as a barrier for women to apply for a job because they need flexible working so that they can combine paid work with family responsibilities. An employer therefore adopts flexible working policies for jobs where these have not usually been offered, to encourage more women to apply for such jobs.
Certain groups with protected characteristics may have needs which differ from those persons who do not have the protected characteristic. A need is something required because it is essential or important, rather than merely desirable to those with a particular characteristic. A need does not have to be unique to those with that particular characteristic, but it must be something that the employer reasonably believes relates to the characteristic.
An employer is conscious that women are under-represented in a particular job which requires a knowledge of the latest IT packages. They work with the local Jobcentre to offer IT refresher courses to women, especially those who have taken time out of the workforce for family responsibilities. These women are then in a better position to apply for the vacancies.
Low participation may or may not be disproportionate. For you to use positive action to overcome it, participation must be low compared with the level of participation that could reasonably be expected. This might be evidenced by means of statistics, or, where these are not available, by qualitative evidence based on monitoring or consultation.
An employer with a factory in a major city that has an ethnically varied population employs 150 people but only one Asian worker. They will be able to show low participation of Asian workers by looking at their workforce profile in comparison to the size of the Asian population in the city. But if the factory were located in an area which did not have an ethnically diverse population, where the Asian population is significantly smaller, the participation of Asian workers in the factory may not be low when compared to the Asian population of that area.
There are a few exceptions where employers can target applicants with a particular protected characteristic without this being unlawful discrimination. These are not the same as positive action.
In some situations, it may be possible to specify that someone must be over or under a certain age, if this can be objectively justified.
If an ‘occupational requirement’ exists for the job, for example, when a personal assistant is being recruited to support a disabled person in bathing, toileting and dressing, it is possible to recruit someone of the same sex as the person being supported, and the applicant’s sex would be an occupational requirement.
The difference between an occupational requirement and positive action is that:
It won’t always be obvious that people in a workforce have a particular characteristic, so the best way for you to gather evidence is through monitoring.