This week, the Government has published Guidance for employers: Positive action in the workplace says Caroline Rayner of Baines Wilson LLP.
It explains how employers can use positive action in accordance with the Equality Act 2010 to help people who share certain protected characteristics and who are disadvantaged in some way or are disproportionately underrepresented in the workplace. This is not to be confused with positive discrimination, which is unlawful.
Summary of the Guidance
Positive action involves taking proportionate action to satisfy three main aims: reducing disadvantage, meeting different needs and increasing participation in the workforce. However, the circumstances allowing positive action are quite complex and employers need to make sure that they comply with the requirements of the Equality Act 2010 to avoid unlawful discrimination. To address this, the Government has issued guidance to assist employers. The guidance draws on the Equality and Human Rights Commission’s Statutory Code of Practice on Employment which employment tribunals have regard to when considering discrimination claims.
Under the Equality Act 2010 there are two main types of positive action:
- ‘General Action’ which involves taking action to meet the three main aims mentioned above, such as career development initiatives, targeted training or additional support; and
- ‘Recruitment and Promotion’ which means that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the candidate in question has a protected characteristic that is underrepresented in the workforce, or people with the characteristic suffer a disadvantage connected to it.
Employers would need to collate evidence, for example through monitoring data, to establish whether there is any basis to implement a programme of positive action and what action to take. The guidance refers to the Statutory Code and suggests a number of considerations for employers to take into account, such as evidence of the disadvantage, particular need or disproportionately low levels of participation, specific outcomes which the employer is aiming to achieve and the possible action to achieve those actions etc.
Whereas positive action allows employers to take certain steps to encourage people to apply for work and/or be involved in the business in certain situations, this is not designed to discriminate against people. It is different to positive discrimination, which is concerned with the preferential treatment of a particular group – treating someone differently in a positive way – such as setting quotas or benchmarks in the recruitment process with regard to people from a particular group. The two are often confused, and the guidance highlights the difference and includes some examples of initiatives that would probably constitute unlawful discrimination, such as recruiting or promoting a person solely because they have a relevant protected characteristic (without regard to the legal criteria).
Although positive action must be justifiable, any action taken must also be proportionate. An assessment of proportionality will involve the balancing of all relevant factors. Specifically, employers will need to balance the seriousness of the disadvantage suffered, or the extent to which people with a protected characteristic are underrepresented, against the impact the proposed action may have on other people. Importantly, an employer should consider if there are alternative measures that they could impose that could achieve the same effect but that are less likely to result in the less favourable treatment of others and should monitor the action taken and keep it under review.
Using positive action to tackle imbalance for underrepresented groups may, if not carried out correctly, lead to complaints and legal action. This is a complex area of law and seeking legal advice before deciding on a positive action programme can help to avoid this.
Tom Scaife and Caroline Rayner, two Partners in our Employment Team, have previously discussed positive action and positive discrimination in series 2 of our podcast, Baines Explains, which can be heard here. This was recorded and published before the guidance was introduced.
If you have any queries relating to positive action or discrimination in the workplace or if you have any other HR issues please contact our employment team on 01228 552600 or 01524 548494.
