"Positive Action" - will it make any difference?

12 May 2011

Since 6 April 2011 employers have been be allowed to use what the Government calls “positive action” to help get candidates from under-represented backgrounds into the workplace.

When the positive action proposals were published back in 2008 a somewhat hysterical reaction from the press emerged (perhaps the most memorable being the Daily Express’ front-page headline, “White men face jobs ban”) but the actual law is a little more mundane.

Essentially, the new “positive action” provision introduced under the Equality Act 2010 applies ONLY where an employer reasonably thinks that potential employees who share a “protected characteristic” (i.e. national or ethnic background, disability, sex, sexual orientation, religion or belief and/or age) suffer a disadvantage connected to that characteristic which makes participation in an activity by persons who share it is disproportionately low.

So, theoretically, and by way of example, if an employer is faced with two candidates, one of each gender, who are otherwise identical in qualification, and women are underrepresented in that workplace, then the employer may use the defence of “positive action” when faced by a sex discrimination claim from the unsuccessful male applicant. The employer could, again theoretically, use the same “positive action” defence in a claim under any of the other heads of “protected characteristic” (e.g. a race discrimination claim).

Sounds fine in theory. But in practice the new law may be too dangerous to use safely. To use “positive action” without the risk of being on the end of a claim from an unsuccessful candidate, an employer has to demonstrate that the successful candidate is from a protected group who are at a disadvantage or are under-represented, and that they are “as qualified as” any other eligible applicant. Whether or not to use “positive action” is completely up to the employer.

Using the above example of an employer who is worried about under-representation of women in his workplace, that employer is allowed to (but does not HAVE to) take “proportionate action” to encourage women to get jobs. The action permitted would be treating a person (Person A – the female applicant in this scenario) more favourably in connection with recruitment or promotion than another person (Person B – the male applicant in this example) because Person A has the protected characteristic (i.e. her sex) but Person B does not. However, this would ONLY be permitted where:

  1. Person A is as qualified as Person B to be recruited or promoted (this is the most important point);
  2. The employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it; and
  3. Taking the action is proportionate.

We think that these provisos, particularly Point 1., the “as qualified” provision make it very unlikely indeed that the new law will have much effect. It will be extremely hard to prove two candidates are exactly “as qualified” as one another. Because of this difficulty, it is very likely that disgruntled unsuccessful applicants (probably white and/or male applicants like Person B in the above example) will claim that they were better “qualified” and challenging the employer in an employment tribunal to prove they were not better qualified. We anticipate that the risks of this will mean that employers should not use the “positive action” defence when making recruitment decisions – or at least they should think very carefully before doing so. The Daily Express, and the readers posting their outrage its website, can breathe easier for now.

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