How do the positive action provisions in the Equality Act 2010 that relate to recruitment and promotion work?
Section 159 of the Equality Act 2010, which came into force on 6 April 2011, allows an employer to treat an applicant or employee with a protected characteristic (eg race, sex or age) more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. The employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity.
For example, if an employer that is recruiting for a management role considers that two candidates, one male and one female, are as qualified as each other for the role, it could decide to offer the job to the female candidate because women are under-represented at management level in the organisation.
The Act does not set out how to decide if two candidates are "as qualified as" each other. Guidance published by the Government Equalities Office on using positive action in recruitment and promotion states that employers can 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".
Employers must not have a policy of treating people who share a characteristic more favourably; they should decide whether or not to take positive action on a case-by-case basis.