The Equality Act 2010 permits employers to use positive action (not positive discrimination) to help overcome barriers to employment and to increase employment of groups which are underrepresented within their workplace.
The UK Government has now issued useful Guidance for employers on this topic.
What is positive action?
It is additional assistance for groups of people who share a protected characteristic, such as sex, age, race, or disability, to remove barriers to employment. The action must be proportionate and should aim to:
- Reduce disadvantage
- Meet different needs; and /or
- Increase participation.
What can employers do?
There are two provisions in the Equality Act 2010 which concern positive action:
- General action – section 158 of the Act, allows proportionate action designed to meet the above three aims, for example, a mentoring programme for underrepresented groups or a recruitment event aimed at encouraging applications from underrepresented groups;
- Recruitment or promotion – section 159 of the Act, permits employers, when deciding between equally qualified candidates, to select one over the other because they are from a group which is underrepresented within their workplace. “Equally qualified” does not mean the same as “identically qualified”.
Section 159 does not allow an employer to decide, for example, that their next management recruit must be female on the basis there are fewer women who are managers than men – that would be positive discrimination, which remains illegal.
If you are considering positive action of either type?
This is a tricky area and could lead to claims of discrimination from other employees/candidates if you get things wrong. You will need to consider:
-how you can demonstrate that a particular group is underrepresented within your workplace
-how you can demonstrate that the action you take is proportionate.
Consultation with and educating the rest of the workforce is key to ensuring they understand that positive action is about removing disadvantage, why you are taking such action and the format it will take.
If member companies are considering any form of positive action, please contact the Scottish Engineering Legal & HR Team for a discussion. We can help you review your plans, identify any areas of risk, and talk through any steps you should take before proceeding.
