On 6th April 2011, section 159 of the Equality Act 2010 comes into force.

What does this mean?

In specific circumstances, section 159 enables employers to use positive action to address needs or disadvantages of a protected/under-represented group when recruiting and/or promoting.

These specific circumstances are as follows:

  1. both the person with a “protected characteristic” (based on age, gender, race etc) and the person who does not have a “protected characteristic” must be viewed as equal candidates and;
  2. the employer does not have a policy of treating persons of the protected/under-represented group more favourably in comparison with those persons who do not share the relevant protected characteristic; and
  3. the more favourable treatment is a proportionate way of minimising the disadvantage and/or encouraging participation.

What should employers do?

Employers should consider having a policy which sets out how the spirit of positive action can be implemented as outlined in section 159. This will ensure that all staff dealing with recruitment understand the extent to which positive action may be taken.

The policy should anticipate that where there are equally qualified candidates for promotion and/or recruitment, the employer is able to take positive action in favour of a protected/under-represented group, as long as such favourable treatment is a proportionate way of minimising the disadvantage and/or encouraging participation.