Guidance

Positive action in the workplace

Published 17 April 2023

1. Executive summary

If you are an employer in Great Britain (England, Scotland and Wales), you can choose to use the positive action measures in the Equality Act 2010 to help people overcome certain barriers and improve representation in your workforce. In order to do this lawfully, you should understand what the legislation allows and familiarise yourself with the full guidance.

Positive action allows additional help to be provided for groups of people who share a ‘protected characteristic’ (for example, race, sex, or sexual orientation) in order to level the playing field. You can take proportionate action that aims to reduce disadvantage, meet different needs and increase participation.

There are 2 types of positive action that are set out in the Equality Act 2010:

General (section 158)

This involves proportionate actions which are designed to meet the 3 aims above. This could include, for example, providing a leadership scheme to help an underrepresented group achieve more senior positions in an organisation or providing tailored training for a group because they have specific requirements.

Recruitment or promotion (section 159)

This involves actions that reduce disadvantage and/or increase representation specifically when it comes to deciding between equally qualified candidates. For example, hiring one candidate over another equally qualified one because the former has a certain protected characteristic that is underrepresented in the workforce. Other activities which are related to recruitment (for example, jobs fairs targeted at ethnic minority groups), but do not involve choosing between candidates, fall under the ‘general’ (section 158) provisions.

Here is a short summary of the things you should consider when thinking about using positive action in your organisation:

Step 1 – Consider why you want to take action

This is an important first step as you will need some evidence on why action may be needed. It is likely that this evidence will be available from your own workforce data or existing data or research. If there is no evidence that any groups are experiencing barriers, you should not use positive action.

Step 2 – Consider what actions you want to take

If you are satisfied that you have a good reason for taking positive action, you should think about what type of action you want to take and how this will address the barriers you have identified. When thinking about possible actions, you should consider whether they are proportionate to addressing the problem you have identified. You should also understand the difference between positive action and positive discrimination (which is unlawful) before making decisions to ensure that any actions you take are lawful.

Step 3 – Consider how you will take action

You will need a proposed timeline for delivering the actions you want to take forward and decide how you will measure progress. As part of this, you should think about how long you will need to take the actions and factor in appropriate times to review how well they are working. You should also consider how you will consult others on any changes and communicate with staff.

2. Foreword

This guidance is intended to help employers understand how they can use the positive action provisions in the Equality Act 2010 (‘the Act’) appropriately to remove barriers to diversity in their workforce and enable equality of opportunity.

It is focused on the use of positive action in the workplace, including in recruitment and promotion. Positive action can also apply to the provision of services, which is covered in separate guidance.^{[footnote 1]}

There are sections of this guidance that draw on the Equality and Human Rights Commission’s (EHRC) Statutory Code of Practice on Employment (‘the Statutory Code’), which has a dedicated section on positive action. We recommend that employers have read and understood the positive action chapter in the Statutory Code, in addition to this guidance, as a court or tribunal will take into account a failure to comply with a provision in the Code where that is relevant to a case.

3. What is ‘positive action’?

There are 9 ‘protected characteristics’ in the Act (see the section on protected characteristics). Every person has some of these characteristics.

Some groups of people who share a particular characteristic may suffer disadvantage connected to that characteristic, have different needs compared to others without that characteristic, or are underrepresented in certain activities.

The positive action provisions in the Act^{[footnote 2]} allow employers to take action that may involve treating one group that shares a protected characteristic more favourably than others, where this is a proportionate way to enable or encourage members of that group to:

• overcome or minimise a disadvantage
• have their different needs met
• participate in a particular activity

This is called taking ‘positive action’.

The positive action provisions are exceptions to the usual requirements of discrimination law that prevent those with a particular protected characteristic being treated differently, either better or worse, from those without that same characteristic. Without the positive action exceptions, taking action that deliberately and overtly advantages those with a particular protected characteristic over those without it would normally be unlawful under the Act. There are some other limited exceptions, which are explained in the Statutory Code.

Positive action is entirely voluntary. There is no requirement for an employer to use positive action. However, to ensure that groups with a particular protected characteristic are not being excluded or disadvantaged in the workplace, employers can take positive action measures to help minimise that disadvantage. This could include taking action to increase their participation in the workforce where the employer reasonably thinks that this is disproportionately low, or to meet their particular needs relating to employment.

3.1 Awareness of legal risks of using positive action

Using positive action to redress an imbalance for underrepresented groups may have the consequence of relatively worsening the position of other individuals or groups, so there is likely to be some risk of complaints and even legal action against the organisation taking the action. It is a good idea to get legal advice before deciding on a positive action programme based on a protected characteristic.

4. Implementing positive action lawfully: checklist for employers

Employers wishing to take positive action will need to ensure they comply with the requirements of the Act to avoid unlawful discrimination. To establish whether there is any basis to implement a positive action programme, employers should collate evidence, for example through their monitoring data, and analyse that evidence to decide on the most appropriate course of action to take.

In considering positive action measures, the Statutory Code suggests employers consider and document the following:

• evidence of the disadvantage, particular need or disproportionately low levels of participation, as appropriate, and an analysis of the causes
• the specific outcomes which the employer is aiming to achieve
• the possible action to achieve those outcomes
• an assessment of the proportionality of proposed action
• the steps the employer decides to take to achieve these aims
• the measurable indicators of progress towards those aims, set against a timetable
• how they will consult with relevant groups, such as all staff, staff support groups and members of the protected group the programme is being established for
• the time period for the programme
• the period after which the employer will review the progress of the measures to ensure it remains proportionate

5. What is the difference between positive action and positive discrimination?

Positive action is not positive discrimination. Positive discrimination is unlawful in Great Britain. If an action treating a particular group more favourably does not meet the statutory requirements in the Act for taking positive action, then it is likely to be unlawful direct discrimination under the Act, irrespective of the motives behind taking it. Some people may refer to this type of unlawful preferential treatment as ‘positive discrimination’. However, it is not unlawful for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Some examples of initiatives that would probably constitute unlawful discrimination are:

• recruiting or promoting a person solely because they have a relevant protected characteristic (without regard to the legal criteria)
• setting quotas (as opposed to targets) to recruit or promote a particular number or proportion of people with protected characteristics irrespective of merit
• requiring that places for those with particular protected characteristics are reserved on interview panels, irrespective of whether there are more suitable candidates excluded who do not have that particular characteristic
• creating schemes to benefit those with a particular protected characteristic, without any evidence that the group in question is at a disadvantage or has different needs

Positive discrimination may also occur where a disadvantaged or underrepresented group that shares a protected characteristic is treated preferentially (but not in accordance with the legal criteria or existing exemptions) to address inequality.

Positive action should not be confused with ‘affirmative’ action, which was first introduced in the USA and has since been adopted in some other countries. Although the general aims to promote greater equality of opportunity are similar, affirmative action can be more prescriptive than positive action and often involves the use of quotas to reduce the underrepresentation of some groups. For example, this could involve setting quotas to interview a minimum number of people from underrepresented groups for certain roles. As above, introducing such quotas could constitute positive discrimination as they are mandatory and employers may need to put forward less qualified candidates for hiring or promotion opportunities to meet any minimum restrictions. Targets differ from quotas as they are not mandatory and can be used to make improvements without compromising the ability for employers to put forward the best candidates for roles. When considering taking positive action, you should be careful not to use American resources about affirmative action, as they do not set out the legal position in this country.

To avoid positive discrimination, an employer should follow the steps set out in this guidance. In particular, an employer must reasonably think that one of the 3 conditions –  disadvantage, different needs, or disproportionately low participation – applies to the particular group before taking measures targeting it.

An example of positive discrimination is the case of Furlong v Chief Constable of Cheshire Police. Cheshire Police operated a policy of treating all candidates who passed the recruitment tests (regardless of score) as being equally qualified for the job. Ethnic minority candidates were then prioritised for selection. The Employment Tribunal found that Cheshire Police Service directly discriminated on grounds of sex, race and sexual orientation against Mr Furlong, who was a white, heterosexual male.

The Tribunal found that while there was evidence that ethnic minority groups were underrepresented within the force, reliance on section 159 of the Act failed because the prioritised candidates were not as well qualified as Mr Furlong. The tribunal therefore found that the action taken by the police force was unlawful because the test in section 159(4) was not met. First, the police force had set an artificially low threshold in their recruitment tests and it was wrong that all 127 candidates were equally suitable for the job. Second, the tribunal found that the police force’s recruitment approach of prioritising ethnic minority candidates had the hallmarks of being a policy. And third, although the police force had a legitimate aim to improve ethnic diversity in its force, the tribunal held that the blanket approach to positive action in recruitment was not reasonably necessary or a proportionate means of achieving that legitimate aim. More information on positive action in recruitment is available in later sections of this guidance.

6. Protected characteristics

The Act protects people from being treated less favourably because they have a protected characteristic. The protected characteristics are:

• age
• disability (see also where positive action is not needed)
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race (including ethnic or national origins, colour and nationality)
• religion or belief (including lack of belief)
• sex
• sexual orientation

Positive action applies to all the protected characteristics above. It is not unlawful discrimination to take proportionate, specific action aimed at alleviating disadvantage or underrepresentation experienced by groups who share any of these characteristics. Although, historically, these issues have tended to apply most commonly to women and ethnic minorities, any group of people who share a protected characteristic is within the scope of positive action if there is a reasonable belief that they suffer a disadvantage connected to their characteristic, have different needs, or are underrepresented in a setting. This could therefore include groups not traditionally viewed as ‘disadvantaged’ such as white individuals and men. More than one group may be targeted by an employer, providing that there is evidence of disadvantage connected to the characteristic, different needs or underrepresentation for each group.

There may be instances where an employer wants to address a disadvantage that has an impact on groups that share more than one protected characteristic. In these cases they would need to consider the positive action criteria against each characteristic. For example, measures to increase the representation of older men would involve considering how the requirements are met for the protected characteristic of sex, and then in a separate exercise consider the protected characteristic of age.

As the positive action provisions are exceptions to the rules against discrimination, they are only relevant if an employer wishes to treat a group more favourably based on a protected characteristic that is in the Act. If an employer wishes to use characteristics that are not protected to inform decisions on hiring or promotion – for example, socio-economic background – they should seek legal advice to ensure their criteria is not discriminatory.

Example

An employer has very few women in its senior management team. Under the general positive action provisions it offers a development programme which is only open to women to help female staff compete for management positions.

This is not unlawful discrimination against male staff if the employer can demonstrate that women’s representation in senior management is disproportionately low and that the company does not have a general policy of treating women more favourably than men when it comes to recruitment and promotion.

7. Where positive action is not needed

Action taken to benefit those from a particular protected group that does not involve less favourable treatment of those from another protected group will normally be lawful without the need to consider positive action. This also includes action taken to eradicate pre-existing discriminatory policies or practices. For example, actions such as placing a job advertisement in a magazine with a largely ethnic minority readership as well as placing it in a national newspaper, or reviewing recruitment processes to ensure that they do not contain criteria that discriminate because of any protected characteristic, would not be classed as ‘positive action’.

Also, in the particular case of disability, it is lawful for an employer to treat a disabled person more favourably than a non-disabled person without needing to rely on positive action. However, employers can opt to use the positive action provisions to overcome or minimise a disadvantage connected to a person’s disability, or increase the participation of people with a particular form of impairment.

8. ‘General’ and ‘recruitment and promotion’ positive action

Section 158 of the Act includes provisions on ‘general’ positive action. Section 159 includes provisions specifically on ‘recruitment and promotion’. General positive action in the context of employment can relate to things that fall outside of recruitment and promotion, such as career development initiatives, targeted or bespoke training to meet the specific needs of a particular group and providing additional support through mentoring or shadowing schemes. Section 158 does not apply when the specific criteria in section 159 apply.

This guidance sets out how employers can make use of general positive action followed by how they can use positive action when it comes to recruitment and promotion.

9. General positive action

General positive action is action taken by an employer that is a proportionate way of:

• enabling or encouraging people who share the protected characteristic to overcome or minimise a disadvantage connected to that characteristic
• meeting that group’s needs that are different from the needs of people who do not share that characteristic
• enabling or encouraging people who share the protected characteristic to participate in an activity where they are disproportionately underrepresented

Action may be taken when any one or more of these conditions exist.

For positive action to be lawful, an employer must reasonably think that one of the above conditions – disadvantage connected to the characteristic, different needs, or disproportionately low participation – applies. Employers should have evidence that indicates this, although it does not need to be sophisticated statistical data.

9.1 What does ‘proportionate’ mean?

Proportionate refers to the balancing of all the relevant factors. In considering using the positive action provisions, an employer will need to balance the seriousness of the disadvantage suffered, or the extent to which people with a protected characteristic are underrepresented, against the impact that the proposed action may have on other people.

When thinking about proportionality, an employer should consider if there are alternative measures that could achieve the same effect that are less likely to result in the less favourable treatment of other people. It is unlikely that there will be a good justification for taking the action if there are other options available and employers may need to demonstrate that the proposed action is the only way to address the underrepresentation or disadvantage effectively.

9.2 Action to remedy disadvantage

What is a disadvantage for these purposes?

‘Disadvantage’ is not defined in the Act. It may for example, include exclusion, rejection, lack of opportunity, lack of choice or the presence of barriers to accessing employment opportunities. Disadvantage may be obvious in relation to some issues, such as legal, social or economic barriers, or obstacles which make it difficult for people of a particular protected group to enter into or make progress in an occupation, a trade, a sector, or workplace.

What action might be taken to overcome or minimise disadvantage?

The Act enables action to be taken to overcome or minimise disadvantage connected to a protected characteristic which is experienced by people who share that protected characteristic. The Act does not limit the action that could be taken, provided it satisfies the statutory conditions and is a proportionate way of achieving the aim of overcoming a genuine disadvantage. Such action could include identifying (through monitoring, consultation or a review of policies and practices) any possible causes of the disadvantage and then, for example:

• targeting advertising at specific disadvantaged groups, for example advertising jobs in media outlets which are likely to be accessed by the target group
• making a statement in recruitment advertisements that the employer welcomes applications from the target group, for example ‘older people are welcome to apply’
• providing opportunities exclusively to the target group to learn more about particular types of work opportunities with the employer, for example internships or open days
• providing training opportunities in work areas or sectors for the target group, for example work placements

Example

Research shows that women in Britain experience significant disadvantage in pursuing careers in engineering, as reflected in their low participation in the profession and their low levels of seniority. Some contributing factors are gender stereotyping in careers guidance and a lack of visible role models.

A leading equalities organisation, in partnership with employers in the engineering sector, could offer opportunities exclusively to girls and women to learn more about and promote careers in engineering, through a careers fair attended by women working in the profession.

This sort of intervention would not be unlawful discrimination because it would be a targeted, proportionate intervention to deal with the low participation of women in engineering.

9.3 Action to meet needs

What are ‘different’ or ‘particular’ needs?

A group of people who share a particular protected characteristic have ‘different needs’, if due to factors that especially apply to people who share that characteristic, they have needs that are different to those of other groups. This does not mean that the needs of a group have to be entirely unique from the needs of other groups to be considered ‘different’. Needs may also be different because, disproportionately, compared to the needs of other groups, they are not being met or the need is of particular importance to that group.

Example

An employer’s monitoring data on training shows that there is a very low uptake from their female Muslim employees. They consult with employees, through their staff networks, and find that there is a significant proportion of Muslim women in their workforce who do not speak English as their first language and that this acts as a barrier to access training opportunities.

The employer could choose to take positive action and provide additional English language courses primarily targeted at this group of workers. This sort of intervention would not be unlawful discrimination so long as the action taken was a proportionate way of overcoming the disadvantage experienced by the Muslim women.

What action might be taken to meet those needs?

The Act does not limit the action that employers can take to meet different needs, provided the action satisfies the statutory conditions and is a proportionate means of achieving the aim of meeting genuinely different needs. Such action could include:

• providing exclusive training to the target group specifically aimed at meeting particular needs, for example, English language classes for staff whose second language is English
• providing support and mentoring, for example, to a member of staff who has undergone gender reassignment
• creating a work-based support group for members of staff who share a protected characteristic who may have workplace experiences or needs that are different from those of staff who do not share that characteristic

9.4 Action to encourage participation in activities

What activities does this apply to?

This provision applies to participation in any activity where the participation of those who share a protected characteristic is disproportionately low – this can include employment and training. Action to increase participation might include making available training opportunities, open days or mentoring and shadowing schemes.

What does ‘disproportionately low’ mean?

The Act says that action can only be taken where the employer reasonably thinks that participation in an activity by people sharing a particular protected characteristic is ‘disproportionately low.’ This means that the employer will need to have some reliable indication or evidence that participation is low compared with that of other groups or compared with the level of participation that could reasonably be expected for people from that protected group.

Participation may be low compared with the proportion of people with:

• that protected characteristic locally
• that protected characteristic who are qualified to work in a particular sector
• that protected characteristic in the workforce

What action could be taken?

The Act permits action to be taken to enable or encourage people who share the protected characteristic to participate in that activity. Provided that the action is a proportionate means of achieving the aim of enabling or encouraging participation, the Act does not limit what action could be taken. As set out in the Statutory Code, it could include:

• setting targets for increasing participation of the targeted group
• providing bursaries to obtain qualifications in a profession such as journalism for members of the group whose participation in that profession might be disproportionately low
• outreach work such as raising awareness of public appointments within the community
• reserving places on training courses for people with the protected characteristic, for example, in management
• targeted networking opportunities, for example, in banking
• working with local schools and FE colleges, inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the company
• providing mentoring

Example (from the EHRC Code of Practice on Employment)

An employer with a factory in Oldham employs 150 people but only 10% are Asian. The employer knows from Census data that the Asian population in Oldham is much higher than 10% which means that, from a local perspective, Asian people are underrepresented in their workforce. The employer sets a target for increasing its Asian workforce and conducts outreach work in Asian communities promoting the factory with the aim of increasing its Asian workforce. Setting targets can be a proportionate way of achieving greater representation if there is evidence to suggest this is needed. However, the employer would need to ensure that they follow the recruitment criteria for appointing candidates and hire the best qualified candidates for the role.

10. Recruitment and promotion

10.1 What is positive action when it applies to recruitment and promotion?

Positive action provisions in the Act mean that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks:

• the candidate has a protected characteristic that is underrepresented in the workforce
• that people with that characteristic suffer a disadvantage connected to that characteristic

However, positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is underrepresented or disadvantaged.

Example

A bank has a vacancy for one of its senior jobs. All of the other senior roles at that level are held by people over the age of 50. The bank conducts a recruitment exercise and at the end of a stringent and objective process finds that 2 applicants could do the job equally well. One of the applicants is over 50 and the other is younger.

The bank could decide to take positive action and give the job to the younger candidate. But the bank couldn’t give the job to the younger candidate if the older candidate would be able to do the job better – that would be unlawful direct discrimination against the older candidate.

10.2 How do the positive action provisions in recruitment and promotion work?

The general positive action provisions do not apply in cases where the specific positive action in recruitment and promotion apply. These permit preferential recruitment or promotion of a candidate with a protected characteristic on specified grounds – that is, if an employer reasonably thinks that people with a protected characteristic are underrepresented in the workforce, or suffer a disadvantage connected to that protected characteristic. These provisions only apply when the candidates being considered are ‘as qualified’ and only permitted where it is a proportionate way of addressing the underrepresentation or disadvantage.

In practice, positive action allows an employer faced with making a choice between 2 or more candidates who are of equal merit to take into consideration whether one is from a group that is disproportionately underrepresented or otherwise disadvantaged within the workforce.

This is sometimes called either a ‘tie-breaker’ or the ‘tipping point’.

But this kind of positive action is only allowed where it is a proportionate way of addressing the underrepresentation or disadvantage.

Positive action can be used at any time in the recruitment or promotion process. However, the specific recruitment and promotion provisions are more limited than the general positive action provisions. The former only applies in relation to the process of deciding between equally qualified candidates. Other actions relating to recruitment would not fall under the recruitment and promotion provisions. For example, advertising a job welcoming applications from suitably qualified black teachers as they are underrepresented in a school would not come under the recruitment or promotion provisions. Rather, the general positive action provisions may be applicable, provided the statutory criteria are met.

Example

A counselling service for teenagers has no employees who are Jewish, despite being located in an area with a high Jewish population. When a vacancy arises, 2 candidates of equal merit are in a tiebreaker situation with the employer having to find some way to choose between them. One candidate is Jewish and the other candidate is not. The service manager chooses to offer the job to the Jewish candidate.

This would be allowed under the positive action provisions because the Jewish candidate in this example ‘has a protected characteristic that is underrepresented in the [employer’s] workforce’ and is of ‘equal merit’.  As such, it is unlikely that the other candidate would be successful in any claim of unlawful religious discrimination.

In the vast majority of cases, any use of positive action as a ‘tie-breaker’ between candidates who are of equal merit for a particular post is likely to be at the end of the recruitment process, at the actual point of appointment. At that stage all of the relevant factors that the employer will need to know to determine whether or not the candidates are truly as qualified as each other should have been established.

10.3 What does ‘equal merit’ mean?

To use positive action provisions in a tie-breaker situation, the employer must first establish that the candidates are of equal merit.

Employers should establish a set of criteria against which candidates will be assessed when applying for a job. This can take into account a candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job.

However, employers should ensure that any criteria do not indirectly discriminate against people who share a protected characteristic – for example, a requirement that staff must work shift patterns that mean they have to be on-call at certain fixed times might put women, who are more likely to be responsible for childcare, at a disproportionate disadvantage. This would be unlawful indirect discrimination unless it could be shown that the need for these work patterns could be objectively justified.

Employers must consider whether candidates are of equal merit in relation to the specific job or position they are applying for. While 2 candidates may be considered to be of equal merit for one particular post, the same 2 candidates might not be equally suitable for another job.

Example

A health and fitness club is faced with making a choice between 2 applicants for a job as the manager of a leisure facility. One, a woman, has recently completed a Leisure Management Foundation Degree course but has little practical experience. The other candidate is a man who has no formal qualifications but has several years experience of working in leisure centres. Having interviewed both candidates, the employer decides that both could do the job to the same standard. In other words, they are of equal merit for the role even if each would bring a different set of skills and experiences to the job. As the candidates are of equal merit, the manager could voluntarily use the positive action provisions when choosing between the candidates and opt to employ the man because all of the other senior positions at the leisure complex are held by women.

This would not be unlawful positive discrimination because:

• the participation of men in the organisation is disproportionately low
• the man is as qualified for the post as the woman
• the employer does not have a policy of treating men more favourably than women
• the action taken is a proportionate means of encouraging the participation of men in their workforce

Example

An employer is faced with having to choose between 3 candidates of equal merit for a post. One candidate has a mobility impairment, another has a learning disability and the third has no form of disability.

To address the underrepresentation of people with learning disabilities within the organisation, the employer selects the candidate with the learning disability. This would not be unlawful discrimination against either of the other candidates because the candidates are equally suited to the role and the employer is using the positive action provisions to address an underrepresentation that it has identified through evidence.

10.4 What does ‘reasonably thinks’ mean?

Positive action in recruitment and promotion can be used where an employer ‘reasonably thinks’ that people with a protected characteristic are underrepresented in the workforce, or suffer a disadvantage connected to that protected characteristic.

Information or evidence will be required to indicate to the employer that one of those conditions exists – but it does not need to be sophisticated statistical data or research. It may simply involve an employer looking at the profiles of their workforce or making enquiries of other comparable employers in the area or sector as a whole. Additionally, it could involve looking at national data such as labour force surveys for a national or local picture of the work situation for particular groups who share a protected characteristic. A decision could also be based on qualitative evidence which may be obtained in various ways, for instance through discussion with workers or their representatives.

However, it should be acknowledged that some protected characteristics are more readily identifiable than others – for instance, a person’s sex may be easier to establish than their religion or belief or their sexual orientation – and so it may be more difficult to determine if there is any underrepresentation of those with certain protected characteristics.

Employers will make different decisions on how best to collect information from their employees. Using Government Statistical Service harmonised standards can help employers collect information for all protected characteristics in a way that can be comparable with data from other employers, and national data from the government.

Example

A large construction firm is reviewing the diversity of their employees at senior levels. It does not keep detailed records on the sexual orientation or gender reassignment status of their employees.  Following some staff engagement, the HR team is able to demonstrate that it is reasonable to think that there is a disproportionately low number of LGBT employees who hold senior roles in the firm.

The employer could decide to use positive action in aiming to address this. For example, the employer could undertake additional and targeted communications to promote their senior leadership scheme to their LGBT employees, including hosting a dedicated session for their LGBT staff network.

Taking positive action based on that information would usually be lawful because LGBT employees in this example have ‘protected characteristic(s) that is underrepresented in the [employer’s] workforce’ – sexual orientation or gender reassignment.

10.5 What is ‘proportionate’?

As noted, positive action in recruitment and promotion is only allowed where the action is a proportionate way of addressing the underrepresentation or disadvantage.  ‘Proportionate’ has the same meaning as it has for general employment positive action – see What does proportionate mean.

Example

A small voluntary organisation has 5 employees, who are all white. The organisation acknowledges that it would prefer to have an ethnically diverse workforce but feels that, because of its size, it would not be proportionate to use positive action provisions in recruitment to address this, especially as ethnic minorities are represented in similar organisations throughout the sector.

10.6 Routinely favouring people with protected characteristics

The positive action provisions in recruitment and promotion make it clear that employers must not adopt policies or practices designed to routinely favour candidates with a certain protected characteristic, even where there is evidence of underrepresentation or disadvantage. All suitably qualified candidates must be considered on their individual merits for the post in question. Where one candidate is clearly superior or better qualified for the job than the others, then an employer should offer the position to that candidate irrespective of protected characteristics.

However, this does not prevent an employer having a routine policy of being prepared to use positive action where it is appropriate for it to do so (provided that the need for the action is routinely reviewed to ensure it remains necessary and proportionate). For example, an employer may go into an appointment exercise prepared to use the ‘tie-breaker’ provisions to address the disproportionately low number of women within its engineering division, only to identify a clearly superior male candidate – the option to use the ‘tie-breaker’ would then become irrelevant.

10.7 Artificially low thresholds

Appointments should always be made on merit. If one candidate is superior to another the position should be offered to that candidate. If the pass mark in an assessment centre is set at 70% and one candidate scores 71% and another scores 91%, treating those candidates as being of equal merit may be vulnerable to legal challenge

11. Monitoring and review of positive action

If positive action continues indefinitely, without any review, it may no longer be proportionate, as the action taken may have already remedied the situation the positive action was initially taken to resolve. This could make it unlawful to continue to take the action.

Therefore, when undertaking measures under the positive action provisions under section 158 or 159 of the Act, it would be advisable for employers to indicate that they intend to take the action only so long as the relevant conditions apply, rather than indefinitely. During that period, they should monitor the impact of their action and review progress towards their aim. If employers have reviewed progress and found that they have met their original aims, they should cease any positive action measures that were designed to meet those aims as they will no longer have a case for treating some groups more favourably than others under the positive action provisions.

12. More resources

Equality and Human Rights Commission, Employment: Statutory Code of Practice

Acas, the Advisory, Conciliation and Arbitration Service

The Equality Advisory and Support Service provides free and accessible advice about the Equality Act 2010 to individuals in England, Scotland, and Wales.

1. Equality Act 2010: A quick start guide to positive action in service provision for voluntary and community organisations (PDF) ↩

2. Equality Act 2010 ↩