Positive action is a topic that many employers have heard of, but which relatively few people have seen in practice or know much about. Our FAQs give an overview of this complex area.
What is positive action?
There are actually two types of positive action:
1. General positive action – employers can take action to enable or encourage people with a relevant characteristic (e.g. people with a particular disability) to overcome a disadvantage they may be currently suffering, or to meet the needs of those people or to enable/encourage their increased participation.
2. Positive action in recruitment and promotion – this is the more publicised and controversial form of positive action and applies where employers believe people with a particular protected characteristic (e.g. people of a particular race) are disadvantaged or under-represented in the workplace. Employers would potentially be able to treat a person who shares that characteristic more favourably than others during the recruitment/promotion process, but crucially this only applies where the candidate is equally qualified as compared with the other candidates. In practice, it is unusual for candidates to genuinely be equally qualified.
Is this positive discrimination?
No, positive discrimination is a different concept. Positive discrimination is when an advantage is given to those groups in society which are often treated unfairly because of a protected characteristic. This is not generally permitted under equality law.
However, there is no prohibition on treating disabled people more favourably than non-disabled people. This is because it is considered that disabled people in general face a lot of barriers to participating in work and other activities. Therefore, employers can treat a disabled job applicant more favourably even if they are not at a disadvantage due to their disability. This would allow an employer to have a policy of shortlisting and interviewing all disabled applicants who meet the minimum requirements for a job (such as the ‘two ticks’ system).
Do employers have to take positive action?
No, positive action is voluntary and an employer cannot be made to use positive action. However, employers have a duty to make reasonable adjustments for disabled people, which might sometimes overlap with the positive action provisions.
When can an employer use positive action?
The employer must reasonably think that a particular group is disadvantaged, has different needs or has disproportionately low participation. It would be advisable to look for evidence that this is the case. Positive action cannot just be used to favour one group of people over another. The positive action must be proportionate. This will depend on the seriousness of the disadvantage, the extremity of need or under-representation or whether there are other things the employer can do to resolve the issue.
In recruitment, the employer could take action to treat a particular group more favourably during the recruitment process. However, this is only allowed where the person in that particular group is as qualified as someone not in that group. The employer cannot have a general policy of treating people with a protected characteristic more favourably (except disabled people – see above). Again, the positive action must be proportionate.
One of the issues with positive action is that it does have a fairly high risk of being challenged. It is definitely an area where we recommend taking specific advice if it is an approach you are considering.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).