The Government recently announced that the positive action in recruitment provision contained in the Equality Act will come into force in April 2011.

Positive Action – What is it?

There have been sensational stories in the media about positive action which claim that it will force employers to give jobs to women and those from ethnic minorities, regardless of merit. However, this is not what positive action means. Positive action is not positive discrimination. Positive discrimination is the practice of automatically favouring individuals from certain groups (e.g. women). This is unlawful. Positive action, on the other hand, is much more limited and retains the principle of selection on merit. Furthermore positive action is voluntary not mandatory. Employers are under no obligation to use positive action in their recruitment procedures if they choose not to.

Positive Action in Recruitment

There are a number of requirements employers have to fulfil before they can use the positive action provisions in the Equality Act. An employer has to 'reasonably think' that:-

  1. Persons who share a protected characteristic are disadvantaged; or
  2. Those persons' participation in an activity is disproportionately low.

The Equalities and Human Rights Commission (EHRC) suggest that 'reasonably think' means that an employer should have some indication or evidence that either of the statutory conditions in (i) or (ii) applies. This does not need to be sophisticated statistical data. Employers could assess the profile of their workforce or look at national data (such as labour force surveys). 'Disadvantaged' is not defined in the Equality Act, but could include obstacles which make it harder for certain groups of people to enter or make progress in certain occupations. In order for an employer to demonstrate that participation is 'disproportionately low', it is not simply a question of looking at statistics. The EHRC gives an example of an employer who has factories in Cornwall and London, each employing 150 workers. Whereas the Cornish factory employs 2 workers from an ethnic minority background, the London factory employs 20. However as the ethnic minority population of Cornwall is 1%, the Cornish factory would not meet the test of 'disproportionately low' because the numbers of its ethnic minority workers are not low in comparison to the size of the ethnic minority population in Cornwall.

If an employer satisfies these requirements, it can only use positive action in recruitment if in addition, it can show that:-

  1. Candidate A is "as qualified as" candidate B
  2. It does not have a policy of treating persons who share certain protected characteristics more favourably; and
  3. Taking the action is a proportionate means of achieving a legitimate aim (i.e. is reasonably necessary)

Employers should note that 'as qualified as' is not the same as equally qualified. It includes not only academic qualifications but also suitability, competence and professional performance. The EHRC advise that employers compile an objective set of criteria that relate to the post and conduct an objective assessment of each candidate against those criteria and each other. Only if this process results in two or more candidates who are 'as qualified as' each other, can an employer use one candidate's protected characteristic as the deciding factor and only where that candidate belongs to a disadvantaged group or one which is under-represented in the workforce.

Deciding to use positive action

Given the limited circumstances in which positive action in recruitment can be used by employers and the factors that an employer has to consider in order to use it, it is likely that the majority of employers will decide simply not to use it. Many employers will also be concerned about challenges to their recruitment decisions by unsuccessful candidates if they do use positive action.

However the EHRC's view is that using the positive action provisions may assist public sector employers in complying with their public sector equality duties. Those employers interested will need to assess whether those with a particular protected characteristic are under-represented in their workforce or are disadvantaged and ensure they have some 'evidence' (e.g. workforce statistics) to show that this is the case. As the EHRC advises, an objective selection criteria is probably the best way to assess whether one candidate is 'as qualified as' another. The Trades Union Congress (TUC) suggests employers seek to agree any such selection criteria with the recognised union. Finally as with all recruitment decisions it will be important to record the reasons why each candidate was or was not successful, in the event that any recruitment decision is challenged.