The focus on diversity, equity and inclusion in recent years has led employers to think carefully about how they can address disadvantage and underrepresentation within their organisations. However, the Equality Act imposes some limitations on the measures they can take to improve diversity. The UK government recently published guidance on how employers can take lawful positive action in the workplace.
Taking positive action
An employer can take proportionate action to address disadvantage, different needs or disproportionately low participation rates amongst a group that shares a protected characteristic. It must have some evidence to demonstrate that a condition for taking positive action is met, although this does not necessarily need to be detailed statistical evidence. Proportionality is assessed by balancing the seriousness of the disadvantage against the impact of the proposed action on others. If there is a way to achieve the employer’s objective that has a smaller impact on others, the desired action is less likely to be proportionate.
Positive action during recruitment and promotion is also possible, although the conditions are stricter. It is only possible to treat someone more favourably because of a protected characteristic in recruitment or promotion decisions if two candidates are as qualified as each other. In that situation an employer can choose between the candidates on the basis of a protected characteristic if this is a proportionate means of addressing disadvantage or disproportionately low participation rates. The employer must not have a policy of treating those who share a protected characteristic more favourably in connection with recruitment or promotion.
The guidance indicates that there are three key steps for employers considering positive action measures:
- Consider why action is needed and the evidence to support the view that certain groups face barriers in the workplace;
- Decide what type of action to take, how this will address the relevant barriers and why the action is proportionate; and
- Prepare a plan and timeline for delivering the actions, including how to measure progress, how long the action will be needed and how to consult and communicate with employees.
It is important for employers to recognise the difference between positive action, which is lawful, and positive discrimination, which is not. The guide highlights the risks in adopting US affirmative action models that do not reflect the UK’s legal framework.
As a whole, the guidance does not break new ground. It reflects and in many cases reproduces existing guidance from the EHRC about how to operate positive action lawfully. There are however a couple of helpful clarifications.
The first relates to when an employer can conclude that a group experiences disadvantage, different needs or disproportionately low participation rates where protected characteristics are less readily identifiable – such as sexual orientation or religion and belief. The guidance suggests that it might be possible to rely on staff engagement to demonstrate that one of the conditions for positive action is met.
In relation to positive action in recruitment, the guidance confirms that it is not unlawful for an employer to have a routine policy of being prepared to use positive action where it is appropriate to do so. The requirement not to have a policy of treating someone with a protected characteristic more favourably simply means that employers must consider all candidates on their merits and only use the tie breaker provisions where candidates are of equal merit.
The guidance recognises that adopting positive action measures may give rise to the risk of legal action under the Equality Act and says that it is a “good idea” to get legal advice before implementing a programme. Please get in touch with one of the authors or your usual contact if you would like to discuss what is appropriate for your organisation in this area.
Authored by Jo Broadbent, Anvita Sharma and Stefan Martin.