What "positive action" is permitted under discrimination legislation?
It is lawful under s.158 of the Equality Act 2010 for an employer to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). Separate provisions allowing positive action in relation to recruitment and promotion in limited circumstances are contained in s.159 of the Act.
Positive action is lawful if it is taken to:
- enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
- meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or
- enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.
The employer can encourage people from disadvantaged groups to apply for work, and can provide training to help equip them for the particular work, but the decision on whom to select must be made on merit alone, except in circumstances where the candidates are "as qualified as" each other and s.159 applies.
For example, an employer that has records that show that its employees from a particular racial group are under-represented at management level could run a management training course targeted at employees from that group. However, the employer could not favour candidates from that group, at the expense of other candidates, when recruiting managers (unless s.159 applies).
Section 159 of the Equality Act 2010 allows an employer to treat an applicant or employee with a protected characteristic (eg race, sex or age) more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. The employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Employers must not have a policy of treating people who share a characteristic more favourably; they should decide whether or not to take positive action on a case-by-case basis.
The position in relation to positive action in favour of disabled people is different because it is not unlawful to discriminate in favour of a disabled person and employers have a positive duty to make reasonable adjustments to compensate for disadvantages related to disability.