The main provisions of the Equality Act 2010 came into force on 1 October 2010, but the section dealing with positive action in recruitment and promotion is not yet in force. It will come into force on 6 April 2011. 

Section 159 of the Equality Act 2010 will, in defined circumstances, permit an employer to appoint a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic. 

It should be noted that s.159 permits, rather than requires, an employer to take positive action. 

Section 159(1) sets outs the defined circumstances in which an employer is permitted to take positive action ie only where an employer reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic (s.159(1)(a)), or participation in an activity by persons who share a protected characterictic is disproportionately low (s.159(1)(b)). The positive action must be a proportionate way of the employer enabling or encouraging persons to overcome the disadvantage or participate in the activity (s.159(4)(c)). 

Section 159(4) of the Equality Act 2010 imposes further conditions, and provides that an employer may take positive action only if:

  • A is as qualified as B to be recruited or promoted; and
  • the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it. 

Employers should establish a set of criteria against which candidates will be assessed when applying for a job as part of the process of determining whether or not two candidiates are equally qualified. The Equality Act 2010 does not set out how to decide whether or not two candidates are "as qualified" as each other. However, the Equality Act 2010 explanatory notes (PDF format, 564K) (on the National Archives website) state that "the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance". 

The explanatory notes confirm that where an employer favours a less qualified candidate with a protected characterictic over a more qualified candidate who does not have the protected characteristic, in an effort to address disadavantage or under-representation, this would constitute direct discrimination. 

To give an example, if an employer offers a job to a homosexual person on the basis that homosexual persons are under-represented in the employer's workforce where there was a heterosexual candidate who was more qualified for the job, this would constitute direct discrimination because of the protected characteristic of sexual orientation in breach of s.13 of the Equality Act 2010. 

The Government Equalities Office has published guidance on taking positive action (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion (PDF format, 338K) (on the Government Equalities Office website)). The guidance gives the example of a counselling service for teenagers that has no Muslim employees, despite being located in an area with a high Muslim population. When a vacancy arises, two candidates of equal merit are in a tiebreaker situation with the employer having to find some way to choose between them. One candidate is Muslim and the other candidate is not. It would be permissible under s.159 for the employer to offer the job to the Muslim candidate, and this would not constitute direct religious discrimination against the non-Muslim candidate. 

Section 159 of the Equality Act 2010 will come into force on 6 April 2011. The commencement order that brings s.159 into force on that date was made on 17 January 2011 and may be viewed on the National Archives website (Equality Act 2010 (Commencement No.5) Order 2011 (SI 2011/96)). 

XpertHR guidance

  • Podcast: Positive action On this episode of XpertHR Weekly, we discuss what positive action in the context of recruitment and promotion means for employers. 
  • Equality Act 2010 provisions already in force: resources on XpertHR We provide a round-up of the new and updated resources from XpertHR on the Equality Act 2010, the main provisions of which came into force on 1 October 2010. This includes major changes to the equal opportunities sections of our employment law manual and model policies and documents. 
  • Equality Act 2010: Government to introduce positive action provisions in April 2011 XpertHR reports on the Government's confirmation that in April 2011 it will enact provisions in the Equality Act 2010 that will allow an employer, in defined circumstances, to recruit or promote a person with one protected characteristic in preference to another person who does not have the protected characteristic, provided that they are equally qualified for the post. 

Government guidance and documents