Do the positive action provisions apply to all protected characteristics?
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?
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?
No. A position for recruitment or promotion should always be offered to the best candidate. An employer that offers a position to a less suitable candidate just because he or she has a targeted protected characteristic risks being guilty of unlawful positive discrimination. This greatly limits the scope of the positive action provisions in s.159 of the Equality Act 2010. In reality, situations in which an employer has two candidates for recruitment or promotion, but with genuinely no preference between them, will be rare. It is only where the employer could, effectively, make its selection by tossing a coin that the candidates could truly said to be of equal merit.
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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