What is the main purpose of the Equality Act 2010?
What is the main risk for an employer that applies the positive action in recruitment and promotion provisions?
Have all the provisions in the Equality Act 2010 been in force from October 2010?
Is there any statutory guidance for employers on the Equality Act 2010?
What is the right to bring a claim for discrimination arising from disability under the Equality Act 2010?
Under the Equality Act 2010, can an employee bring a claim for harassment where the unwanted conduct is not directed at him or her?
If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?
What changes should employers make to their practices and procedures in light of the Equality Act 2010?
Under the Equality Act 2010 can an employer still ask questions about a prospective employee's health?
Is it a breach of the law on disability discrimination to ask about health during recruitment?
How is the obligation to make reasonable adjustments in the recruitment process affected by the rules on health enquiries?
Can employers make conditional offers subject to health clearance and then withdraw an offer if the health requirement is not met?
What new powers does the Equality Act 2010 confer on employment tribunals?
Does the Equality Act 2010 outlaw pay secrecy clauses?
Does the Equality Act 2010 outlaw associative discrimination?
How do the positive action provisions in the Equality Act 2010 that relate to recruitment and promotion work?
Are employers obliged to take positive action towards under-represented groups under the Equality Act 2010?
In what circumstances do the positive action in recruitment and promotion provisions apply?
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: 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)). 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 badly exposed to a potentially successful discrimination
What is the difference between positive action and positive discrimination?
Are employers able to use both the general and the recruitment and promotion positive action provisions?
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