The Government have recently published guidance on using positive action to help people who share a particular protected characteristic, to overcome certain barriers under the measures.
Positive action allows additional help to be provided to groups of people who share a ‘protected characteristic’, for example, race, sex, religion. It allows employers to treat one group that shares a protected characteristic more favourably than others, without breaching the Equality Act 2010 (EqA). Positive action can only be used where the particular group being treated more favourably suffers a disadvantage, has particular needs not met, or are under-represented in the workplace.
Under the EqA, positive action can be used on a general basis or in the recruitment or promotion process, but there is no legal requirement to do so.
The guidance sets out a 3-step approach when considering using positive action:
Step 1 – Consider why you want to take action
Organisations will need to gather evidence as to why action may be needed, and should be able to use workforce data to support their positive action decision. The guidance is clear that if you cannot produce data to show that your selected group is experiencing barriers, you should not use positive action.
Step 2 – Consider what actions you want to take
Once an organisation has established why they want to take positive action and can evidence the reasons for this, they should think about which type of positive action to take and how this will help the barriers identified in step 1. Organisations should also make sure they assess the proportionality of the action and take legal advice to ensure the proposed action fits within the definition under the EqA, which for recruitment can only be taken in limited circumstances.
Step 3 – Consider how you will take action
Organisations should propose a timeline for delivering the actions they want to take forward and establish a way to measure the progress of these. Consideration should be given to how progress will be reviewed, when it will be reviewed, and how the changes will be communicated with staff.
The guidance includes a useful positive action checklist for employers and identifies the differences between positive action and positive discrimination (which is unlawful).
It also highlights the awareness of legal risk when using positive action. It is important to consider whether using positive action to correct one imbalance, may cause an imbalance of another group which could put organisations at risk of complaints or legal action.
As there has been no updated guidance from the Government on positive action since the initial advice note with the EqA in 2011, the guidance is a welcome addition. It also reminds employers of positive action, and the potential benefits organisations can gain from using positive action generally or within recruitment or promotion such as having a diverse and dynamic workforce and reaching a wider talent pool for recruitment.
If an organisation decides to implement positive action, it is important to ensure that it is done correctly to avoid unlawful discrimination and other potential risks.
If you have any queries relating to positive action or discrimination in the workplace, please contact Employment Team.