ARE YOU TAKING POSITIVE ACTION – IF NOT, SHOULD YOU BE?


Positive action is recognised by the Equality and Human Rights Commission (“EHRC”) as an important tool which can be used by employers to help individuals who possess a protected characteristic (e.g. race or gender) from overcoming any workplace disadvantages they suffer.


However, the use of positive action has been limited, largely due to a lack of awareness by employers and a lack of confidence in how such measures can be applied without straying into the dangerous territory of positive discrimination, which is unlawful.


The Equality Act 2010 outlines two types of positive action that may be taken: n general positive action; and n positive action in recruitment and promotion.


General positive action may be permissible where individuals who share a protected characteristic suffer a disadvantage, have different needs or where there is disproportionately low representation of those with the protected characteristic. In such circumstances, “proportionate action” may be permissible. This could be, for example, introducing targeted networking opportunities for those with the protected characteristic.


WHAT ABOUT RECRUITMENT? Positive action in recruitment and promotion may be permissible where, as above, individuals who share a protected characteristic suffer a disadvantage, or where there is disproportionately low representation. This can allow an employer to treat a candidate more favourably during recruitment or promotion. However, there are strict limitations in place. The candidate being treated more favourably must be of equal merit to the candidate being rejected, and positive action must be “proportionate” and not the result of a blanket policy.


Whilst there are risks in using positive action, the danger of an employer not using positive action is that they fail to take advantage of a tool which significantly enhances the diversity of their workforce.


EQUALITY IN RECRUITMENT – OTHER CONCERNS The EHRC recommends that employers take steps such as using objective recruitment practices that focus on ability rather than networks; utilising blind recruitment (i.e. removing names or gender from job applications); providing training to interviewers on unconscious bias and promoting diversity; using targets to provide focus on resolving disparity; and making more use of the tiebreaker provision.


8 Diversity, Inclusion and Workplace Behaviours – The Business Agenda


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