Positive action in the workplace – guidance published

The Equality Act 2010 (the Act) protects employees from unlawful discrimination in the workplace. The Act sets out nine protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. However, the Act also includes provisions which allow employers in certain circumstances to take positive action to alleviate disadvantage or underrepresentation experienced by groups who share those protected characteristics.

Positive action – what is it?

Positive action is an exception to the general rule against discrimination under the Act. Employers may consider taking positive action where individuals who share a protected characteristic suffer a disadvantage, have particular needs, or are disproportionately under-represented. Positive action involves treating one group that shares a protected characteristic more favourably than others. Employers can take certain actions to help alleviate the disadvantage, meet the individual’s needs or encourage greater participation. There is no legal obligation on an employer to use positive action.

Positive action – Government guidance

The Government has published guidance for employers on positive action in the workplace aiming to help employers understand how they can use the positive action provisions in the Act appropriately to remove barriers to diversity in their workforce. It sets out three steps that an employer should consider when thinking about using positive action:

Consider why you want to take action. Employers will need evidence that indicates why action may be needed.
Consider what actions you want to take and how this will address the barriers you have identified. Employers will need to consider whether the actions are proportionate to addressing the problem they have identified.
Consider how you will take action. Employers will need a proposed timeline for delivering the actions ad how progress will be measured.

The guidance includes an explanation of what positive action is, when it can be considered, issues for employers to consider and practical examples.

In particular, there is an explanation of the two types of positive action that employers can take:

General positive action. The guidance notes that this could include, for example, developing career development initiatives, targeted or bespoke training to meet the specific needs of a particular group or providing additional support through mentoring or shadowing schemes.
Recruitment and promotion. The provisions in the Act enable an employer to recruit or promote a candidate who is of equal merit to another candidate if the employer reasonably thinks that the candidate has a protected characteristic that is underrepresented in the workforce; and that people with that characteristic suffer a disadvantage connected to that characteristic. This is sometimes referred to as a ‘tie-breaker’.

The guidance reminds employers that positive action is only allowed if it is a proportionate way of addressing the underrepresentation or disadvantage.

Comment

As noted in the guidance, in order to take positive action measures lawfully, employers should understand what the Act allows and familiarise themselves with the guidance. Employers should also read and understand the EHRC Statutory Code of Practice on Employment which has a chapter dealing with positive action.

The guidance also warns of the risk that taking positive action to redress imbalance for underrepresented groups could have an unintended consequence worsening the position of other individuals or groups, and this could lead to allegations of discrimination. The guidance therefore suggests that employers seek legal advice before deciding on a positive action programme.

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29 June 2023

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