Do the positive action provisions apply to all protected characteristics?
Yes. The positive action provisions in s.159 of the Equality Act
2010 apply to all the protected characteristics in the Act (ie age, disability,
gender reassignment, marriage and civil partnership, pregnancy and maternity,
race, religion or belief, sex and sexual orientation). However, in relation to
disability, in addition to the positive action provisions in s.159, s.13(3) of
the Act allows employers to treat a disabled person more favourably in
comparison to a non-disabled person. This means that an employer can, for
example, take positive action by lawfully limiting recruitment, training and
promotion opportunities to disabled people, without this amounting to unlawful
discrimination against a non-disabled person.
An employer that finds itself in a tie-break situation in which
there is more than one disabled candidate for a job could use the positive
action provisions to overcome a disadvantage or address under-representation of
people with a particular form of impairment. The government guidance (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) (on
the Home Office website)) gives the example of an employer that has to choose
between three candidates of equal merit for a post. One of the candidates has a
mobility impairment; another has a learning disability; and the third is not
disabled. To address the under-representation of people with learning
disabilities within the organisation and the local area, the employer is able to
use the s.159 positive action power to select the candidate with the learning
difficulty. (It should be noted that an employer in a comparable real-life
situation would need to be able to establish and document the
under-representation that justifies its decision to take positive action.)
Given that no two applicants will be identical in terms of their suitability for a post, how can employers show that they are as qualified as each other?
In a recruitment or promotion situation, is an employer obliged to offer the position in question to a candidate with a protected characteristic that is under-represented?
Do employers need to amend their recruitment and equal opportunities policies and procedures in light of the positive action provisions?
At what stage of the recruitment process should employers make the decision to take positive action?
Are there any time limits on the use of positive action?
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