In response to the Inclusive Britain Report, the UK Government Equalities Office has released new guidance for employers choosing to take lawful measures amounting to positive action regarding the recruitment, promotion and career progression decisions towards employees who share a protected characteristic.

Positive action under the Equality Act 2010 may enhance equitable access to opportunities thus improving diversity and inclusion in the workplace, but it is important to understand what the legislation allows.

WHAT IS POSITIVE ACTION?

Positive action enables employers to implement specific measures, treating those with protected characteristics more favourably than others where that group faces a particular disadvantage, has different needs, or comprises disproportionately low representation within an organisation. The positive action provisions in the Equality Act 2010 empower employers to make equitable decisions in recognition that employees who share a protected characteristic may face challenges or difficulties not faced by employees without a protected characteristic. As the guidance makes clear, it is also important to ensure that the way those decisions are implemented does not unfairly disadvantage other groups as it could amount to unlawful positive discrimination.

Measures constituting positive action may include targeting potential candidates or employees who share a protected characteristic by:

• implementing mentorship programmes;
• hosting and attending open days, outreach, and networking opportunities;
• providing bursaries; or
• using a protected characteristic to 'tie-break' when deciding between candidates of 'equal merit'.

IMPLEMENTING POSITIVE ACTION LAWFULLY

When implementing positive action, employers should consider and keep a record of:

• Evidence considered showing that action is needed. Evidence does not need to be statistical or sophisticated data and may include making enquiries of comparable employers operating in the same sector/area, analysing national data or discussions with workforce or their representatives.
• The proportionality and reasonableness of the action taken. The action taken must go no further than necessary to address the existing condition. Employers should consider any alternative measures that achieve the same outcome without prejudicing others through less favourable treatment. Positive action must be the only way to redress underrepresentation or disadvantage effectively.
• The mechanism for review and management of the action taken. This should include a timeline for measuring progress and a review mechanism.  

TAKEAWAYS

The guidance explains the possibility of taking positive action whilst signposting the legal risks and suggests that employers take legal advice before implementing a positive action programme. It also highlights the difficulties in actions amounting to unlawful positive discrimination as well as unforeseen consequences of trying to use non-protected characteristics such as socio-economic background to inform decisions on hiring or promotion.

It also highlights that positive action should not be confused with "affirmative" action which was first introduced in the USA (and has been adopted by some other countries).  Affirmative action can be more prescriptive than positive action and often involves the use of quotas, rather than targets, to reduce underrepresentation of some groups.  Introducing quotas could constitute positive discrimination as their mandatory nature may invite employers to hire or promote less qualified candidates to meet these quotas. Conversely, targets which are not mandatory may be used to improve diversity whilst prioritising merit flexibly and proportionately.

In relation to recruitment and promotion, the guidance warns that employers should not adopt policies or practices that routinely favour employees with a protected characteristic.  Positive action initiatives must remain necessary and proportionate, otherwise they may amount to positive discrimination. The guidance does state that this does not prevent an employer having a routine policy of being prepared to use positive action where it appropriate to do so, as long as the employer routinely reviews the need for the action to ensure it remains necessary and proportionate.

It also provides some helpful pointers for evidencing that people with a protected characteristic are underrepresented in the workforce or suffer a disadvantage connected to it in terms of positive action in recruitment and promotion. As an example, employers may:

• look at the profiles of the existing workforce;
• make enquiries of other comparable employers in the area or sector;
• look at national data, for example, labour force surveys; and/or
• consider qualitative evidence, for example, through discussion with workers or their representatives.

The guidance acknowledges that certain protected characteristics are more readily identifiable than others and therefore it may be difficult to determine if there is underrepresentation in the workforce of those protected characteristics, e.g. sexual orientation. It also suggests using Government Statistical Service harmonised standards to help collate data from employees for all protected characteristics to make it comparable with other employers and nationally.

ACAS has also updated its pages on using protected characteristics to make decisions and on using protected characteristics in recruitment.

Contributors to this article were Katherine Moore and Constanza Cecchetti