What is positive action in the workplace?

Positive action in the workplace is designed to help people belonging to protected groups overcome or minimise disadvantages, meet the particular needs of a protected group, or encourage them into an activity they might otherwise feel excluded from. There are specific grounds on which you, as an employer, can take positive action and here our Employment Law team discuss them.

Under sections 158 and 159 of the Equality Act, it is lawful for employers to take positive action to support those who they reasonably believe face disadvantages arising from a protected characteristic. There are 9 protected characteristics, which are:

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

The legislation under the Equality Act applies to positive action in the workplace generally and positive action in recruitment and promotion.

What is the difference between positive action and positive discrimination?

Positive action must not be confused with positive discrimination which is unlawful, e.g. the setting of quotas (as opposed to targets, which are lawful) or any form of preferential treatment. Discrimination occurs when a candidate or employee is given preferential treatment because of a protected characteristic, or is employed specifically because of a protected characteristic, rather than because they are the most qualified or equally qualified for a role.

How do I ensure my positive action is lawful?

To be considered as positive action opposed to positive discrimination, you must be attempting to:

• enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
• meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or
• enable or encourage people who share a protected characteristic to participate in an activity or industry in which their participation is disproportionately low.

You can encourage people from disadvantaged groups to apply for jobs by aiming recruitment campaigns at them, provide training to prepare them for the work and advertise vacancies in a publication read predominantly by that audience. It important to note that it is only encouragement that is permitted. The decision on who to choose must be made on merit alone, without consideration of the protected characteristic, except in circumstances where the candidates are "as qualified as" each other.  This principal of selection on merit remains key to recruitment or promotion decisions as it prevents the concern that positive action would be used to recruit or promote someone less qualified than another, because they had a particular protected characteristic.

The Equality Act does not set out how to decide who to recruit if two candidates are "as qualified as" each other. Guidance published by the Government Equalities Office on using positive action in recruitment and promotion states that employers 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".  

You must not have a policy of treating people who share a characteristic more favourably; you should decide whether or not to take positive action on a case-by-case basis.

Positive action in relation to favourable treatment of disabled people is different because it is not unlawful to discriminate in favour of a disabled person and you have a positive duty to make reasonable adjustments to compensate for disadvantages related to disability.

Positive action is often a confusing and nuanced subject and therefore it is vital that you seek appropriate legal advice if you have any concerns on how to act. If you have any questions on positive action or to find out more about how we can assist you, call us today on 023 8071 7717 or email employment@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.