Positive action in recruitment and promotion: practical implications

Caroline Noblet of Squire Sanders Hammonds continues a series of articles on positive action in recruitment and promotion with a look at the practical implications for employers of the new provisions. The positive action provisions come into force on 6 April 2011. From that date, employers will be able to take positive action when they recruit or promote employees, provided that they meet specific conditions. 

Deciding whether or not to take positive action

The positive action provisions in s.159 of the Equality Act 2010 are voluntary. Therefore, employers will need to decide whether or not to adopt them and, if they do, in what circumstances. According to Equality Act 2010: A step-by-step practical guide to using positive action when making appointments (PDF format, 296.22K) (on the Government Equalities Office website), being able to "use positive action when making appointments provides employers with an additional tool they can use to improve the diversity of their workforce". The Equality and Human Rights Commission (EHRC) Statutory code of practice on employment (PDF format, 1.09MB) (on the EHRC website) highlights the potential benefits of using positive action, including "a wider pool of talented, skilled and experienced people from which to recruit" and "a better understanding of the needs of a more diverse range of customers - both nationally and internationally". While these are all laudable objectives, use of the power to take positive action in recruitment and promotion is subject to certain conditions (see Positive action in recruitment and promotion: overview in this series for more details) and given the uncertainty around, for example, the meaning of "as qualified as" when making a comparison between the chosen candidate and other candidate(s), employers may feel that the risk of a employment tribunal claim by an unsuccessful job applicant, for not using the power correctly, outweighs the benefits of taking positive action. Employers that decide to deploy the positive action provisions will also have a number of practical issues to consider.

Documenting an intention to take positive action

One of the conditions of the positive action provisions is that employers must not routinely treat people with a protected characteristic more favourably. However, 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 Government Equalities Office website) suggests that an employer can have "a routine policy of being prepared to use positive action where it is appropriate for it to do so". It is unlikely that, by stating that it has a policy of using positive action in recruitment and promotion where appropriate, an employer will fall foul of this statutory condition. However, references to the use of positive action in documents such as the recruitment and equal opportunities policies should emphasise that this is a voluntary measure and that it will be used only in tie-break situations.

There is no statutory requirement for employers to highlight in their external recruitment materials that they are "positive action employers". Indeed, to do so might potentially pose a risk that an unsuccessful candidate from an under-represented group will argue that the employer's failure to use the power is, in itself, evidence of a discriminatory approach. Instead, employers could continue to state in their recruitment materials that they are an "equal opportunities employer". This indirectly picks up on the spirit of the suggestion in the quick start guide to use positive action where appropriate.

Using the power to take positive action

To take positive action without this amounting to unlawful discrimination, an employer must reasonably think that people who share a protected characteristic suffer a disadvantage connected to the characteristic, 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 that aim.

Reasonably thinks: To justify using the power to take positive action, an employer will need to provide evidence of why it thought it was reasonable to do so. The quick start guide states that this does "not need to be sophisticated statistical data or research" although whether or not a tribunal that is considering this point will be quite so relaxed remains to be seen. The guide is unclear as to which workforce the employer must consider to support its belief that a certain group is under-represented, since it suggests that the employer look not just at its own workforce, but also at the local and national picture in relation to the particular role. However, it is hard to imagine that an employer would be expected or willing (or well advised) to use positive action to address any imbalances in any workforce but its own. Whatever the "workforce" in respect of which they obtain information, employers will need to make sure that they fully and clearly document this, in case they are subsequently required to produce evidence in a tribunal.

Equal merit: The positive action provisions should be used only as a tie-breaker when there are two or more candidates for recruitment or promotion who are of equal merit. There is no clear picture of what candidates of "equal merit" really means but logically it must refer to candidates between whom the employer would otherwise have to toss a coin. Even the smallest relevant advantage of one candidate over the other would be sufficient to deny that person "equal merit" status.

The quick start guide gives the example of a woman applicant for a managerial post who has the relevant qualification but little practical experience and a man who has no formal qualifications but several years' experience in the relevant sector. The guide suggests that, in a tie-break situation, the employer could use the positive action power to employ the man because (in the example) men are under-represented among the senior positions in the particular business. In practical terms, it will be impossible for a tribunal to undertake a line-by-line comparison of two supposedly "equal" candidates - such an analysis also does not take into account other less objective factors that come across as part of the recruitment process (for example one of the (on the face of it) "equal" candidates being a much better fit in terms of the personalities shown at interview). It also seems unlikely that an employer will have no preference between qualifications and experience.

Employers are advised to consider making use of the power to take positive action only if there is genuinely no other means of distinguishing between the candidates, for example when they are recruiting for a role with a very broad description such as a "general assistant". A tie-break situation is less likely to occur in senior roles where the more particular requirements of the role will differentiate the candidates. As always, it is particularly important that employers clearly document why they want to recruit a particular candidate. In the example from the quick start guide described above a recorded decision at the start of the recruitment process that the employer values experience above qualifications would make the outcome much easier to determine. Notes of the employer's thought processes will also be key to defending future discrimination claims by unsuccessful applicants claiming that the positive action provisions did not apply.

Proportionate: The quick start guide states that, in the context of recruitment or promotion, employers will need to balance the extent to which a protected characteristic is under-represented against the impact that the proposed action may have on other people. It also suggests that employers may "find it helpful to consider if the proposed action is the only way to address the under-representation or disadvantage effectively, or if it would be possible to achieve the same effect by other actions that are less likely to result in the less favourable treatment of other people". The guidance gives the example of a small voluntary organisation with five female employees. While the organisation recognises that it would prefer to have a more gender-balanced workforce, it feels that, because of its small size, it would not be proportionate to use the positive action power to address the imbalance, particularly as men are well represented in similar organisations throughout the sector.

Timing

According to the government guidance, "positive action can be used at any time in the recruitment or promotion process". However, the guidance also says that in most cases it will be applied at the end of the process when employers are able to establish that the candidates are indeed of equal merit.

Employers are best advised to establish and specify at the early stages of the recruitment or promotion process exactly what they are looking for in a successful candidate. A higher level of detail at this stage is less likely to result in a tie-break situation and a dilemma for the employer as to whether or not to take positive action.

Next week's topic of the week article will be some frequently asked questions about the positive action provisions and will be published on 21 March.

Caroline Noblet is partner and global co-head of employment at Squire Sanders Hammonds (caroline.noblet@ssd.com).

Further information on Squire Sanders Hammonds can be accessed at www.ssd.com.