Time to take positive action?

In the wake of the Black Lives Matter global protests, many employers are rightly reflecting on how they should respond. Many have talked publicly about taking “positive action” to combat racial discrimination, but what does this really mean?

In this article, Katie Fudakowski and Xinlan Rose explain the concept of “positive action” as defined in the Equality Act 2010 and give some practical examples of this in the workplace. We also welcome insights from Elizabeth Prochaska, former Legal Director of the Equality and Human Rights Commission whose code of practice is a very useful guide to the law in this area.

What is positive action?

Positive action describes the voluntary measures which employers can take under Equality Act 2020 to improve equality for people who share one or more of the eight “protected characteristics” such as race, age, disability, sex or sexual orientation.

When can positive action be taken?

Positive action can be used by employers in two broad areas: “encouragement and training” and “recruitment and promotion.”

In encouragement and training, where an employer reasonably thinks, based on some credible evidence, that people who share a protected characteristic (1) experience a disadvantage, (2) have different needs or (3) disproportionately low participation in an activity as a result, the employer can take proportionate action to achieve the stated aim of overcoming or minimalizing the disadvantage, meeting the different needs or encouraging participation. 

Provided the proposed action is a proportionate way of achieving the aim of overcoming the evidenced inequality, the employer is free to decide what specific steps it takes.

Action to remedy the disadvantage might include:

• Advertising jobs in media outlets which are likely to be accessed by the target group;
  
  
• Stating that applications from the target group are welcome, eg “older people are welcome to apply”;
  
  
• Providing opportunities exclusively to the target group like internships, open days or work placements.

Action to meet the different needs might include:

• Providing exclusive training to the target group like English language classes for staff with English as a second language;
  
  
• Providing support and mentoring, for example, to a member of staff who has undergone gender reassignment;
  
  
• Creating a work-based support group for members of staff who share a protected characteristic who may have different workplace experiences or needs.

Action to encourage participation among the target group might include:

• Setting targets for participation;
  
  
• Providing bursaries to aid the acquisition of qualifications;
  
  
• Doing outreach work to raise awareness of public appointments within the community;
  
  
• Reserving places on training courses, targeted networking opportunities or provision of mentoring.

When will action be proportionate?

To determine whether your proposed positive action is proportionate, the aim must be weighed up with factors like costs and the effect on other protected groups. Employers should also review the progress and impact of any positive action because it may no longer be proportionate if the situation has been resolved.

What about recruitment?

In recruitment and promotion, taking positive action allows an employer, when faced with two or more candidates of equal merit, to select a candidate from a group that faces a disadvantage or is under-represented in its workforce over a candidate who isn’t from that group to achieve diversity in its workforce. The employer must be satisfied that their decision is proportionate. The Government Equalities Office has produced a Quick Start Guide to help employers which gives this helpful example:

“An accountancy firm is recruiting for its graduate training scheme. After the first round of assessment the firm decides to shortlist 20 candidates. There is a tie-breaker situation for the 20th place on the shortlist as there are a number of candidates of equal merit. The firm decides to use the positive action provisions to advance a candidate from a BME background to the next round of recruitment, because people from BME backgrounds are under-represented in the firm. This would mean that the non-BME candidates could not claim unlawful race discrimination for not being put on the shortlist.”

Can I use positive action alongside other measures?

Yes, positive action is just one of a range of measures an employer can adopt to address disproportionate representation amongst its workforce. A positive action programme can be layered on top of other measures, so for example an employer could have a guaranteed interview scheme for particular groups and alongside this review its recruitment and interview practices to ascertain whether any criteria are directly or indirectly discriminatory. It could also consult with employee groups or a trade union about the needs of a workplace minority and how to increase representation.

Why should you take positive action?

Positive action is optional, not a requirement. However, public sector employers should consider using positive action to help them comply with their Public Sector Equality Duty.

As a matter of good business practice, all employers who have credible evidence of disadvantage, different needs or disproportionately low participation may wish to take positive action. They may find that this brings benefits such as a wider pool of talented, skilled and experienced people from which to recruit, a dynamic workforce able to respond to changes, a better understanding of foreign/global markets and the needs of a more diverse range of customers.

We asked Elizabeth Prochaska, former Legal Director of the EHRC, what advice she had for employers:

Positive action has been underused by employers, particularly when recruiting new staff. There’s been a fear that decisions to select candidates from under-represented groups could lead to legal challenge, but the real threat to employers is to maintain a non-diverse workforce.

Employers should seize the opportunity posed by the Black Lives Matter protests to look again at recruitment and take advantage of positive action. As the government guidance makes clear, equal merit means the candidates overall ability to do the job, not simply their academic or professional qualifications. Employers should:

• State in their recruitment process that they will be using positive action to select a candidate with a specific protected characteristic where there are two or more candidates of equal merit;
  
  
• Establish criteria that enable them to make an assessment of a person’s overall ability to do the job;
  
  
• Make sure they keep good records of decision-making that show how the guidance was applied.

If you require further information about anything covered in this blog, please contact Katie Fudakowski, Xinlan Rose, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2020