Positive action

The EA 10 allows organisations to take active measures to improve the position of ethnic groups who are disadvantaged in an organisation. However, care must be taken to ensure that such “positive action” measures are lawful; the action must be a proportionate way of addressing:

• under-representation;

• a disadvantage they reasonably think the group has suffered; or

• a different need they have.

The EHRC suggests that employers make any positive action time-limited and keep it under review.

Where a protected group is under-represented at work, an employer that is faced with two or more equally qualified candidates for a job or promotion can choose the one from the under-represented group. The EHRC Code says that this should only happen in a “tie-breaker” situation where two candidates are of equal merit.

An employer who decides to prefer the candidate with the protected characteristic must be able to justify their decision as a proportionate means of achieving the aim of raising participation. And there must be a properly thought-through and demonstrable basis for an employer’s assessment that two candidates are of “equal merit” (Furlong v Chief Constable of Cheshire Police [2019] ET 2405577/18).

There is a guidance document on using positive action on the EHRC website, Demystifying positive action in the wake of Furlong v Chief Constable of Cheshire Police.