Positive discrimination in recruitment

In general, positive discrimination in selecting candidates (that is, favouring a candidate with a protected characteristic) is not allowed, but disability is an exception. The EA 10 allows employers to treat disabled job applicants more favourably than their non-disabled counterparts. For example, an employer could have a disabled-only shortlist, or set targets to recruit disabled workers, without worrying about the prohibition on positive discrimination.

Regarding the other protected characteristics, the law provides some very limited and specific scope for positive discrimination in the context of recruitment and promotion. Specifically, Section 159, EA 10 says that when faced with two candidates who are equally qualified and there is evidence of under-representation of a group sharing a protected characteristic, an employer can choose to appoint the candidate with the protected characteristic, for example, race or gender. The ECHR Code recommends giving a wide meaning to “qualified”. To date, it seems that very few private sector employers have taken advantage of this option (Are employers too positive about positive action? Aldridge and Dougan, ELA Briefing, November 2017).