Positive action in recruitment and promotion: overview

Caroline Noblet of Squire Sanders Hammonds begins a series of articles on positive action in recruitment and promotion with an overview. The positive action provisions in the Equality Act 2010 that relate to recruitment and promotion come into force on 6 April 2011. Employers will be able to take positive action when they recruit or promote employees in limited circumstances and provided that they meet specific conditions. 

Introduction

Section 159 of the Equality Act 2010 confers on employers a new power to take positive action when they recruit or promote employees, to address imbalances in the workforce in relation to protected characteristics (for example sex, race or age). The provisions are voluntary. An employer that takes positive action under s.159 will not be committing unlawful discrimination (and will be able to defend a discrimination claim by an unsuccessful job applicant), provided that it applies the provisions correctly and meets certain conditions.

Section 159 did not come into force on 1 October 2010 with the majority of the Equality Act 2010. Prior to the 2010 general election, the Conservative party indicated that it would not introduce the positive action provisions. However, in December 2010, the coalition Government confirmed in its Equality strategy - building a fairer Britain (on the Government Equalities Office website) that it would implement the positive action provisions in April 2011. On 17 January 2011, it made a commencement order (the Equality Act 2010 (Commencement No.5) Order 2011 (SI 2011/96)), to bring the provisions into force on 6 April 2011.

Positive action

The positive action provisions in s.159 apply only to recruitment and promotion. There are general positive action provisions in s.158 of the Equality Act 2010, which came into force on 1 October 2010 and largely replaced pre-existing positive action provisions in the previous anti-discrimination legislation. Section 158 allows employers to take proportionate action when they reasonably think that people who share a protected characteristic suffer a disadvantage based on that characteristic, have specific needs, or are under-represented in an activity.

The Equality and Human Rights Commission (EHRC) has published a Statutory code of practice on employment (PDF format, 1.09MB) (on the EHRC website). The code gives an example of an employer arranging language classes for staff for whom English is a second language as a form of general positive action intended to meet the needs of those with a particular protected characteristic (in this case, race).

The code does not cover s.159 as it was not in force at the time that the code was laid before Parliament. It is understood that the code will be revised when the provisions in s.159 come into effect. In the meantime, guidance in the code on the wording in s.158 that is mirrored in s.159 is likely to apply also to s.159 (for example, the meaning of "disadvantage"). The Government Equalities Office has published Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (PDF format, 338.43K) and Equality Act 2010: A step-by-step practical guide to using positive action when making appointments (PDF format, 296.22K) (both on the Government Equalities Office website).

Employers that wish to take positive action in recruitment and promotion should make sure that they understand the difference between positive action (which will be lawful) and positive discrimination (which generally is not). In the recruitment context, unlawful positive discrimination would be where an employer recruits a person because he or she has a relevant protected characteristic, rather than because he or she is the best candidate. It is also unlawful, for example, to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic.

Recruitment and promotion

As mentioned above, the positive action provisions in s.159 of the Equality Act 2010 apply only to recruitment and promotion. "Recruitment" is defined in s.159(5) as "a process for deciding whether to offer employment to a person". The definition also includes the "process of deciding whether to ... make contract work available to a contract worker [or to] offer a person a service for finding employment" (for example, employment agencies).

As the Act refers to recruitment as being "a process", this suggests that employers can make the decision to take positive action at any stage of recruitment. The Government Equalities Office guidance says that "positive action can be used at any time in the recruitment or promotion process" and gives an example of a tie-breaker situation for a position on a shortlist. However, the guidance then goes on to say that, in most cases, it will apply "at the end of the recruitment process, at the actual point of appointment. At that stage all of the relevant factors that the employer will need to know in order to determine whether or not the candidates are truly as qualified as each other should have been established".

There is no definition of "promotion" in the Act. As with recruitment, the guidance refers to positive action being used at any time in the "promotion process".

Conditions

To be able to take positive action, without this amounting to unlawful discrimination, an employer must reasonably think that people who share a protected characteristic suffer a disadvantage connected to the characteristic, or that their participation in an activity is disproportionately low. For example, if an employer reasonably thinks that black employees are, because of their race, disadvantaged in their ability to reach senior management positions and it has two equally good candidates for promotion, one of whom is black and one of whom is white, it can promote the black applicant on that basis. However, even if it does hold this view about ethnic disadvantage, it cannot promote the black candidate if the white candidate is more qualified for the role in question.

For an employer to be able to take positive action, certain conditions (in s.159(4)) must be met, namely:

  • the chosen candidate must be "as qualified as" other the candidate for recruitment or promotion;
  • the employer must not have a policy of treating persons with the particular protected characteristic more favourably in connection with recruitment or promotion than persons who do not share the relevant protected characteristic; and
  • the more favourable treatment must be a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation.

Meaning of "as qualified as"

"As qualified as" is not defined in the Act. The quick start guide makes clear that employers should use the s.159 positive action provisions only in "tie-break" situations, ie where they have two or more candidates who are otherwise of equal merit. The guide recommends that employers "should establish a set of criteria against which candidates will be assessed when applying for a job" (which should presumably be objective). This is something that employers are likely to be doing anyway, irrespective of whether or not they intend to make use of the positive action power. The guide further recommends that the criteria "take into account a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job". Most employers will already be considering these factors when setting their recruitment criteria. It remains of paramount importance that employers document the criteria and how they have made their final recruitment or promotion decision against those criteria.

The test for determining whether or not one applicant for recruitment or promotion is "as qualified as" another, is unclear at this stage. There is always scope for an unsuccessful candidate to launch a direct discrimination claim on the basis that he or she was better qualified than the successful candidate, and it will be up to the employment tribunals to provide guidance on this point. This lack of clarity is likely to deter many employers from taking advantage of the new power. It will be easier to defend not taking positive action than to defend a decision to select an applicant on the basis of an unknown construction of "as qualified as" or "equal merit".

No policy of more favourable treatment

To be able to rely on the positive action provisions employers must not have a policy of treating people with a protected characteristic more favourably. Again, this clause is likely to cause difficulties for employers. An employer that has applied the positive action provisions in the past might be open to accusations by an unsuccessful applicant in a subsequent recruitment exercise that it has such a policy.

According to the Government Equalities Office guidance, when considering whether or not a particular group is disadvantaged, employers will need to be able to demonstrate that they "have reliable information or evidence to back up [their] decision to use positive action". By possessing evidence to support their decision, employers could render themselves vulnerable to accusations that they have adopted a policy. The guidance also says that this condition "does not prevent an employer having a routine policy of being prepared to use positive action where it is appropriate for it to do so". It is difficult to envisage how this will work in practice.

Next week's topic of the week article will look at the practical implications for employers of the positive action provisions and will be published on 14 March.

Caroline Noblet is a partner at Squire Sanders Hammonds (caroline.noblet@ssd.com).

Further information on Squire Sanders Hammonds can be accessed at www.ssd.com.