April 6: Positive action in recruitment and promotion introduced
Section 159 of the Equality Act 2010, which comes into force on 6 April 2011, permits an employer, in defined circumstances, to appoint or promote a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic.
Section 159(1) provides that an employer is permitted to take positive action only where it reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic (s.159(1)(a)); or participation in an activity by persons who share a protected characterictic is disproportionately low (s.159(1)(b)). The positive action must be a proportionate way of the employer enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage or participate in the activity (s.159(4)(c)).
Section 159(4) of the Act provides that an employer may take positive action only if:
- A is as qualified as B to be recruited or promoted; and
- the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.
Section 159 permits, rather than requires, an employer to take positive action.
- Equality Act 2010 (Commencement No.5) Order 2011 (SI 2011/96) The commencement order that brings s.159 into force on 6 April 2011 was made on 17 January 2011 and may be viewed on the UK legislation website.
Podcast: Positive action On this episode of XpertHR Weekly, we discuss what positive action in the context of recruitment and promotion means for employers.
Positive action in recruitment and promotion to be introduced The XpertHR forthcoming law section sets out further guidance on the positive action provisions.