The power for employers to take positive action on recruitment and promotion contained in section 159 of the Equality Act 2010 came into force earlier this year. Employers are now able to take positive action to recruit or promote employees because of their sex, race etc, if they are “as qualified as” other candidates, provided this is done on a case-by-case basis rather than as a matter of policy.
This does not mean that employers are required or obliged to take positive action. However, if an employer considers that a class of persons who share a protected characteristic (for example, people of a particular racial background, who suffer a disadvantage connected to the characteristic, who have particular needs or are disproportionately under-represented within the workforce) positive action to address the situation is possible.
Employers are now able to take action to address the problem without risking discrimination claims brought by people without the relevant protected characteristic. The provisions concerning positive action in recruitment and promotion sit alongside the provisions for general positive action contained within section 158 of the Equality Act 2010. This general rule can be used where an employer reasonably thinks that persons with a particular protected characteristic are disadvantaged, have different needs or are disproportionately under-represented. In those situations, employers can take proportionate measures to enable or encourage persons with the relevant characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation.
If you are considering taking positive action as a consequence of the recent law, we strongly advise you to seek legal advice before you do so. For more information, please contact Lyons Davidson’s employment team.