Employers are under a legal duty not to discriminate against prospective or existing employees, either negatively or positively.
However, that is not to say employers cannot take ‘positive action’ to assist certain groups of people that are potentially at a disadvantage or under-represented within their workforce.
In this article we examine what amounts to taking positive action within the workplace and how this differs from positive discrimination -given the former is permitted while the latter remains unlawful – as well as how positive action can be beneficial to both your business and your workforce as a whole.
What is meant by positive action in the workplace?
Positive action in the workplace refers to a range of measures that an employer is permitted to take to assist certain groups of people who possess a protected characteristic. Under the Equality Act 2010 a protected characteristic includes age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
In particular, positive action can be taken to address an imbalance of opportunity or to compensate for any disadvantage that the employer reasonably believes are faced by those possessing one of these characteristics when competing with others without the relevant characteristic.
An employer is also allowed to treat a job applicant or employee posssessing a protected characteristic more favourably in relation to recruitment or promotion than someone without that characteristic who is ‘as qualified’ for the role.
In broad terms, positive action is about taking specific steps to improve equality at work for both prospective and existing employees from protected groups. This could be, for example, to increase the number of women or ethnic minorities in senior roles in which they are currently under-represented.
What does the law say about positive action?
Under section 158 of the Equality Act 2010, the law provides that positive action is lawful provided it can be shown it has been taken to:
- Enable or encourage people who share a protected characteristic to overcome or minimise a disadvantage related to the characteristic
- Meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic, or
- Enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low, ie; where they are under-represented.
Put more simply, positive action in the workplace is designed to either lessen any disadvantage that a protected group of people may experience at work, to meet a group’s particular needs, or to encourage that group to participate in an activity they might otherwise feel excluded from.
Section 159 of the 2010 Act goes on to provide that, as long as a person with a protected characteristic is as qualified to be recruited or promoted as anyone else they are competing with, the employer can treat a job applicant or employee with a protected characteristic more favourably when deciding who to recruit or promote, ie; in a tie-breaker situation.
In such a situation, however, the employer would need evidence to show that job applicants or employees with that protected characteristic either experience disadvantage related to that characteristic in the workplace, or are disproportionately under-represented in the workforce or in that job role.
Under both sections 158 and 159, the employer must ‘reasonably think’ that there is an imbalance of opportunity or some form of disadvantage faced by those from a protected group. The action taken by the employer must also be a proportionate means of achieving one of the specified aims. This means that you must be able to show that any positive action has been reasonably considered as an appropriate way forward and will not discriminate against others.
In the context of recruitment or promotion, employers must additionally not have a policy of treating people who share a protected characteristic more favourably, but rather they should decide whether or not to take positive action to assist those from a protected group on a case-by-case basis.
When is positive action lawful?
It is important to remember that whilst you can take steps to encourage those from a protected group to apply for a job role or promotion, such as aiming a recruitment campaign at those from a disadvantaged or under-represented group, the decision on whom to select must be made on merit alone.
This principle of selection on merit remains key to recruitment or promotion decisions within the workplace as it prevents employers from taking positive action to recruit or promote someone less qualified than another, simply because they possess a particular protected characteristic. The only exception to this is in cases where the candidates are “as qualified as” each other and s.159 applies.
By automatically treating all applicants who share a protected characteristic more favourably, or guaranteeing them recruitment or promotion because of that characteristic, would amount to unlawful discrimination. When making a decision as to whether to recruit or promote a particular individual, selection for interview and appointment must not usually be because of a protected characteristic, but rather based strictly on the agreed selection criteria.
What are examples of lawful positive action?
There are various examples of lawful positive action that can be taken to help lessen any disadvantage, to meet the needs of those possessing a protected characteristic, or to increase their participation in a particular activity at work.
These could include any of the following:
- Placing job adverts to target particular protected groups with a view to increasing the number of applicants from that group, for example, where a company or organisation has a low rate of applications from women.
- Including statements in job adverts to encourage applications from disadvantaged or under-represented groups, such as ‘we welcome female applicants’ or ‘we welcome applicants of all ethnic minorities’.
- Offering training and development courses to help equip certain protected groups of people to apply for a promotion at work, for example, where your records show that employees from a particular ethnic minority group are under-represented at management level.
- Favouring the job candidate from an under-represented group, where two candidates are equally qualified, for example, offering a job to a female applicant where your workforce is predominantly male.
What is the difference between positive action and positive discrimination?
Positive action should not be confused with positive discrimination.
Under the 2010 Act, positive discrimination is not defined. Broadly speaking, however, this refers to the automatic favouring, without proper consideration of merit, of disadvantaged or under-represented individuals from protected groups.
While positive discrimination is unlawful, positive action is a limited exception to the prohibition on discrimination in employment law, provided that the employer meets the conditions set out in sections 158 or 159 of the Equality Act 2010.
Positive discrimination typically occurs when a job applicant or employee is given preferential treatment because they possess a protected characteristic, or is employed specifically because of that characteristic, rather than because they are the most qualified or the best candidate for a role. Setting a quota to recruit or promote a specific number or proportion of people from a protected characteristic group is also positive discrimination, and therefore not permitted.
In contrast to positive discrimination, the principle of positive action is permitted under the 2010 Act because it is conduct that is reasonably considered and not designed to, nor is likely to, discriminate against others. This means that employers can use positive action to assist protected groups by taking steps to remove any barriers or disadvantages.
What about positive discrimination for disabled people?
The legal position in relation to positive discrimination in the context of disability is somewhat different, where an employer can lawfully treat an employee who is disabled more favourably because of their disability than non-disabled employees.
Under the Equality Act 2010, employers are in fact under a duty to make reasonable adjustments to compensate for any disadvantages related to a disability, where any failure to make reasonable adjustments in the workplace to ensure that a job applicant or employee is not substantially disadvantaged compared with non-disabled people may be regarded as unlawful.
This means that applicants or employees who are not disabled are unable to claim discrimination on the grounds they have been treated less favourably because of the reasonable adjustments given to a disabled colleague.
Examples of reasonable adjustments might include providing information for a job role in alternative formats, such as Braille, or arranging a ground floor interview for wheelchair users, as well as changes to the physical layout of the workplace or the provision of extra equipment for existing employees.
What does positive action mean for employers’ diversity & inclusion?
Employers in the private sector are not under any strict legal obligation to take steps within the workplace to assist disadvantaged or under-represented groups of people. With the exception of making any reasonable adjustments for disabled people, taking positive action is entirely voluntary.
That said, many companies and organisations still have equality and diversity policies in place, specifically designed to promote fairness and encourage inclusion at work. In particular, positive action, at the point of recruitment and stages of career progression and promotion, will help to ensure that employers create and maintain a diverse and community representative workforce.
Employers who use positive action measures may also find that these bring benefits to their business, including a wider pool of talented workers and wealth of experience from which to recruit and promote.
It will also enable employers to incorporate morally responsible considerations of equality and diversity in their day-to-day practices. In this way, this is likely to create a reputable employer brand and better employee engagement.
What are the potential pitfalls relating to positive action?
Despite the benefits of positive action in the workplace, either to remove any barriers or disadvantages, or to provide support and training to increase the participation of people with a particular protected characteristic, this still runs the risk of allegations of preferential treatment and discrimination.
It is therefore good practice, where possible, to distinguish between candidates based on their overall attributes, ability and experience, together with any relevant qualifications, rather than because of a protected characteristic.
In the case of Mr M Furlong v The Chief Constable of Cheshire Police (2405577/2018) the claimant was a white heterosexual male who, despite interviewing better than other candidates, was unsuccessful in his application to join the force, whilst various under-represented minorities were offered jobs.
It was found by the employment tribunal that in an effort to boost the diversity of their workforce, Cheshire Police had acted unlawfully in treating lesser-qualified candidates with protected characteristics more favourably. This clearly highlights the importance for employers in adopting clear and objective scoring and selection procedures to demonstrate a fair and non-discriminatory process.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.
Positive action FAQs
What is positive action in the workplace?
Positive action in the workplace is where proportionate steps are taken by an employer to compensate for any disadvantage that it reasonably believes are faced by people from protected groups. This could include welcoming applicants from ethnic minority groups, or providing training and development courses to help equip women to apply for a promotion.
Why is positive action important?
Positive action is important to lessen any disadvantage that a protected group of people may experience at work or to encourage that group to participate in an activity they might otherwise feel excluded from. In this way, an employer can help to boost the diversity of its workforce, for example, where a protected group of people are under-represented at senior management level.
What is the difference between positive action and positive discrimination?
Positive discrimination, unlike positive action, is unlawful. This typically occurs when an applicant or employee is given preferential treatment because they possess a protected characteristic, or is employed because of that characteristic, rather than because they are the most qualified or the best candidate for a role.
What is an example of positive discrimination?
Setting a quota to recruit or promote a specific number or proportion of people from a protected characteristic group is a good example of positive discrimination. This could result in an employer prioritising job applications for ethnic minorities over Caucasian candidates, regardless of merit.
Last updated: 18 July 2020