Do employers need to amend their recruitment and equal opportunities policies and procedures in light of the positive action provisions?

Most employers will not need to amend their recruitment and equal opportunities policies to take into account the positive action provisions. The provisions are voluntary and employers that have no intention of deploying them do not need to include references to positive action in their recruitment and equal opportunities polices. Although there is no statutory requirement for them to do so, employers that decide to use the power to take positive action when appropriate and make reference to it in their policies should emphasise that it is a voluntary measure and that it will be used only in tie-break situations and where appropriate.

As far as recruitment materials are concerned, employers should do no more than state that they are an "equal opportunities employer" as this is sufficiently broad to cover any positive action that they take. There is also a risk that, by stating that it is a "positive action employer", an employer could be perceived as having a policy of treating people with a particular protected characteristic more favourably than others (which would be contrary to one of the conditions in s.159(4) of the Equality Act 2010 for positive action to apply) and thereby increasing the risk of a discrimination claim being made against it.