How do I practice positive action in my business?

As businesses plan their future through the current global health crisis, building a strong workforce will be more important than ever. When building a team, employers should not overlook the benefits of diversity in their workforce as there is some evidence that businesses with higher levels of diversity are more financially successful than those with lower diversity. Positive action can be a useful tool for employers who want to increase diversity in their workplace; here, our Employment Law team explain what positive action is and how employers can practically implement this into their business while staying on the right side of Employment Law and not falling into the trap of positive discrimination.  

What does the law say regarding positive action?

Positive action is covered by Sections 158 and 159 of the Equality Act 2010. When an employer reasonably believes that a group of people with a protected characteristic are underrepresented due to a disadvantage connected to their protected characteristic, the employer can take targeted steps to minimise that disadvantage and reduce underrepresentation.

The relevant protected characteristics under the Equality Act 2010 are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race  
• religion or belief  
• sex
• sexual orientation

For positive action to be lawful it must be proportionate, which means that as an employer, you will need to balance the level of disadvantage caused by the protected characteristic and the extent of the underrepresentation in your workplace, with any negative effects positive action may have on other employees or groups.

Positive action in recruitment and promotion

There are several actions you can take to encourage people from underrepresented groups to apply to your organisation:

• One strategy is to advertise vacancies in a publication generally read by a group of people you want to encourage to apply.
• Another option is to host an open day for an underrepresented group to encourage them to think of a career in your business.
• Anti-bias training for your recruiters and managers may also help ensure suitable candidates are not unconsciously overlooked for employment or promotion.

When deciding what measures to implement, it is important to remember that candidates must still be judged on their merits, and the most qualified candidate should be the one chosen. Favouring a candidate solely because they have a protected characteristic that is underrepresented is positive discrimination and is unlawful. However, you may consider a candidate’s protected characteristic when deciding between two candidates of equal merit. In such a case, the protected characteristic can serve as a “tie-breaker” in favour of the candidate from the underrepresented group.

Positive action in training and support

Training and support is another way you as an employer can show your commitment to increasing diversity. You can provide specific training such as IT or language skills to help disadvantaged groups advance within an industry. Some companies also offer job shadowing or mentorship programmes that target underrepresented groups.

Supported internships are one strategy businesses can use to provide opportunities to young people with learning disabilities. The intern completes an unpaid work placement with a local employer and receives extra support from their college and job coach. Through the internship, the young person receives a supportive environment to develop and showcase their skills, and the employer has the opportunity to gain a valuable employee at the end of the internship.

Diversity Monitoring

If you are considering implementing a variety of positive action measures, you should consider collecting data about the current diversity levels in your workplace and industry. Positive action is only lawful if you reasonably think that a group suffers a disadvantage or is underrepresented due to a protected characteristic. While underrepresentation may, in some cases, be obvious, having the data to support your belief will help ensure you are operating within the bounds of the Equality Act. It will also allow you to compare the levels of diversity before and after positive action was implemented. This can help you judge whether the measures were successful. 

There are many reasons why you may wish to increase diversity in your workplace. Diverse teams may help businesses understand and serve a wider range of customers, and there is evidence that diverse teams are more innovative. Positive action measures, including the ones discussed here can help you broaden your talent pool and reap the benefits of diversity in your organisation.

If you have questions regarding recruitment strategies or training opportunities for the managers in your business, you can discuss this with Natasha Young.  In her role as External HR and Training Manager, Natasha works with employers on providing training to managers on several different areas including recruitment, as well as on carrying out disciplinary and grievance hearings, appraisals and carrying out investigations.  To discuss your requirements with Natasha you can contact her by calling 023 8071 7447 or email natashayoung@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.