Guidance issued on Equality Act's Positive Action provisions

Added On: 24th January 2011

Guidance issued on Equality Act's Positive Action provisions

The Equality Act will allow employers to recruit or promote someone from an under-represented or disadvantaged group, where it has a choice between two or more candidates who are "as qualified as each other."

The Government Equalities Office (GEO) has now published guidance on these positive action provisions in recruitment and promotion , which come into force on 6 April 2011.

The guide is intended to help employers understand how they can use the new positive action provisions to improve diversity in their workforce when recruiting and promoting candidates.

The key points to note are:

  • an employer must 'reasonably think' that people with a protected characteristic are under-represented in the workplace, or suffer a disadvantage connected to that protected characteristic. Statistical evidence is not necessarily needed but reliable information is required;
  • candidates must be of 'equal merit' – using an objective scoring system, this can take into account a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job;
  • positive action must be a proportionate way of addressing the under-representation or disadvantage;
  • positive action can be used at any stage in the recruitment or promotion process, not just at the final decision stage;
  • employers cannot have a policy of routinely favouring people with certain protected characteristics;
  • the guide has no statutory force and ultimately the question of whether two candidates are of 'equal merit' is one for the tribunals to determine;
  • positive action is entirely voluntary and there is no requirement for an employer to use the provisions; and
  • positive action does not mean allowing 'quotas' or giving someone a job just because they are a woman, or from an ethnic minority – positive discrimination remains unlawful and candidates must be appointed on merit.