![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201012.jpg)
7. Positive action
In addition to it being unlawful to discriminate against workers on the basis of protected characteristics, it is also unlawful to positively discriminate in favour of protected groups, other than in relation to disabled people . However, under section 158 of the Equality Act 2010 (EA 10) employers have the option to take “positive action”.
Positive action is where employers take steps to benefit a particular protected group (or groups) that does not involve treating another group less favourably. Lawful positive action could be where, in addition to advertising a post in the national press, an employer also advertises in a publication such as The Voice (a magazine particularly aimed at the African-Caribbean community).
Specifically, an employer may be able to take positive action where it reasonably thinks that a protected group is at a disadvantage which is connected to their protected characteristic, have different needs to those of people not from their protected group, or have disproportionately low participation in an activity compared to those not from a protected group. Any action that an employer does take can only be in order to enable or encourage people with a protected characteristic to overcome or minimise that disadvantage, meet the protected group’s needs, or to enable or encourage persons who share the protected characteristic to participate in that activity.
The kind of steps that an employer might be encouraged to take are illustrated in the following example — taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):
A large public sector employer monitors the composition of their workforce and identifies that there are large numbers of visible ethnic minority staff in junior grades and low numbers in management grades. In line with their equality policy, the employer considers the following action to address the low numbers of ethnic minority staff in senior grades:
• reviewing their policies and practices to establish whether there might be discriminatory criteria which inhibit the progression of visible ethnic minorities;
• discussing with representatives of the trade union and the black staff support group how the employer can improve opportunities for progression for the under-represented group;
• devising a positive action programme for addressing under-representation of the target group, which is shared with all staff;
• including within the programme shadowing and mentoring sessions with members of management for interested members of the target group. The programme also encourages the target group to take advantage of training opportunities such as training in management, which would improve their chances for promotion.
However, employers can only take action where participation by a protected group is disproportionately low: section 158(2) of the EA 10. A number of factors will determine what constitutes disproportionately low participation, as the following example illustrates:
An employer has two factories, one in Cornwall and one in London. Each factory employs 150 workers. The Cornish factory employs two workers from an ethnic minority background and the London factory employs 20 workers also from an ethnic minority background. The ethnic minority population is 1% in Cornwall and 25% in London. In the Cornish factory the employer would not be able to meet the test of “disproportionately low”, since the number of its ethnic minority workers is not low in comparison to the size of the ethnic minority population in Cornwall. However, the London factory, despite employing significantly more ethnic minority workers, could show that the number of ethnic minority workers employed there was still disproportionately low in comparison with their proportion in the population of London overall (EHRC Code).
Under section 158(2) of the EA 10, the steps that the employer takes must also be proportionate. In other words the employer should be encouraged to take appropriate steps which are reasonably necessary to achieve the aim.
However, employers are not so restricted when it comes to disabled people. Specifically, under section 13(3) of the EA 10 it is lawful for an employer to treat a disabled person more favourably than a non-disabled person.
For example, employers can be encouraged to offer a guaranteed interview for a post to all disabled candidates who meet the minimum criteria.
Section 159 of the EA 10, expected to be brought into force on 1 April 2011, also contains some important provisions. It will allow (but not compel) employers, where candidates for a job are equally qualified, to select an individual for that post on the basis that s/he is from a disadvantaged group (or where the participation of that disadvantaged group is disproportionately low).