What is the main risk for an employer that applies the positive action in recruitment and promotion provisions?

The main risk for an employer that applies the positive action provisions in s.159 of the Equality Act 2010 is a claim of unlawful direct discrimination by an unsuccessful applicant for recruitment or promotion made on the ground that the employer did not meet the specific conditions needed for it to be able to take positive action. Provided that the employer meets the necessary conditions for the positive action provisions to apply, it will not be committing unlawful discrimination and, as a result, should be able to defend a subsequent discrimination claim by the unsuccessful applicant.

The employer must reasonably think that people who share a protected characteristic suffer a disadvantage connected to it, or that they are under-represented in the workforce. The more favourable treatment of the chosen candidate over other candidate(s) of equal merit must be a proportionate means of achieving the aim of helping to reduce the disadvantage or addressing the under-representation. The difficulty for employers will be that these requirements place a considerable evidential burden on them to justify why their actions were reasonable and proportionate.

Under s.159(4) of the Act, they will also need to be able to show that the candidate in relation to whom positive action was taken was "as qualified as" the unsuccessful candidate(s) (referred to as "equal merit" in Equality Act 2010: A quick start guide to using positive action in recruitment and promotion). This is also likely to be difficult, particularly as "as qualified as" is not defined. If any of the conditions is not met, the employer will be exposed to a potentially successful discrimination claim.