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?

For the positive action provisions to apply, under s.159(4) of the Equality Act 2010 the chosen candidate must be "as qualified as" the other candidate(s). This is likely to be difficult for employers to demonstrate. The government guidance, Equality Act 2010: A quick start guide to using positive action in recruitment and promotion, recommends that employers "should establish a set of criteria against which candidates will be assessed when applying for a job" (which should presumably be objective). It is likely that employers will be doing this anyway, regardless of the positive action provisions. The guide further recommends that the criteria "take into account a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job", again issues that most employers will already be considering when setting their recruitment criteria.

Until there are some decided cases on this point it is not clear if the question of whether or not the chosen applicant is "as qualified as" the other candidates is an objective question or one for the employer's reasonable belief.

Employers should ensure that they clearly document the criteria that they use and how they have made their final recruitment or promotion decision against those criteria. As will always be the case, transparency in how the employer carries out its recruitment or promotion process will be key to its defence of any subsequent tribunal claims.