Positive action and recruitment

What is ‘positive action’?

‘Positive action’ means the steps that an employer can take to encourage people from groups with different needs or with a past track record of disadvantage or low participation to apply for jobs.

An employer can use positive action where they reasonably think (in other words, on the basis of some evidence) that:

  • people who share a protected characteristic suffer a disadvantage connected to that characteristic
  • people who share a protected characteristic have needs that are different from the needs of people who do not share it, or
  • participation in an activity by people who share a protected characteristic is disproportionately low.

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, an employer can take proportionate action to:

  • enable or encourage people to overcome or minimise disadvantage
  • meet different needs, or
  • enable or encourage participation.

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 from the make up of their 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.

Does an employer have to take positive action?

Taking positive action is voluntary. An employer does not have to take positive action and you cannot make an employer use positive action in recruitment.

However:

  • Meeting the different needs of an employer’s workforce can help make staff more productive.
  • Recruiting from a wider range of people, in terms of their protected characteristics, can help an organisation to understand its customers, clients or service users better.
  • If an employer is a public authority, positive action may help them meet the public sector equality duty.

When can an employer use positive action?

Equality law says that an employer has to go through a number of tests to show that positive action is needed.
 

The tests say that the steps an employer is allowed to take as part of positive action must be: 

  • related to the level of disadvantage that exists
  • not be simply for the purposes of favouring one group of people over another where there is no disadvantage or under-representation in the workforce.

    For example:

    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.

An employer 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 for recruitment. An employer must still appoint the best person for the job, even if they do not have the particular protected characteristic being targeted by the positive action.

For example:

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. 

Tie-break situations

The other positive action step an employer can take is to decide to appoint an applicant from a group sharing a protected characteristic if they reasonably believe this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low.

The employer 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 an employer would use the tie-break provisions at the end of the recruitment process, they can also treat an applicant more favourably at any earlier stage of the process. But they can only choose to 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.

For example:

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.

An employer must not have a general policy of treating people with the relevant protected characteristic more favourably in connection with recruitment.
 

Treating disabled people better than non-disabled people

Equality law allows an employer to treat a disabled person better – or more favourably – than a non-disabled person. This recognises that disabled people in general 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.

For example:

An employer has a policy of shortlisting and interviewing all disabled applicants who meet the minimum requirements for a job. 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.

Other situations where a particular protected characteristic can be looked at during recruitment but which are not positive action

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.

For example:

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:

  • An employer using occupational requirement says that only people with a particular protected characteristic can do the job.
  • An employer who wants to use positive action says that anyone who has the right skills, qualities and experience is able do the job, but they want to look especially hard for someone with a particular protected characteristic.

You can read more about exceptions in Situations where equality law is different.

More information

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