Voluntary positive action in recruitment and promotion

Employers have the right under section 158 of the EA 10 to engage in positive action to support people with a protected characteristic where the employer has reasonably identified a need for that action, for example, because of under-representation in the workforce. This can include, for example, placing job adverts where they are most likely to be seen by members of the under-represented group, or offering extra training where a need has been identified. Positive action must be proportionate to need. For guidance see the EHRC Code of Practice.

Section 159 of the EA 10 takes this a step further. It says that when faced with two “equally qualified” candidates, an employer can choose to prefer the candidate from the under-represented group, as long as there is evidence of under-representation in that group. In practice, few employers are likely to take this step because of the risk of claims. Employers will rarely be able to say with confidence that two candidates are “equally qualified”, and by preferring one over the other, the employer risks a possible discrimination claim from the unsuccessful candidate. Demonstrating “under-representation” of a disadvantaged group may also be difficult. Many workforces will include several protected “under-represented” groups, for example, women, men, the old, the young, or particular ethnic groups.