Voluntary positive action in recruitment and promotion

The law changed in April 2011, when the government enacted Section 159 of the EA 10. This provision allows (but does not compel) employers to engage in voluntary positive action in recruitment and promotion processes when faced with two or more equally qualified candidates, to address under-representation of particular protected groups.

Employers already 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. In a recruitment context, 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 ECHR Code of Practice.

Section 159 of the EA 10 takes this a step further and 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. Very few employers are likely to use this new law as it is fraught with risk. Most obviously, employers will rarely be able to say with confidence that two candidates are “equally qualified”. Preferring one candidate over the other exposes the employer to a possible discrimination claim from the unsuccessful candidate. Demonstrating “under-representation” of the disadvantaged group may also be a challenge, since many workforces will be able to point to a number of under-represented groups, for example, women, men, the old, the young, or particular ethnic groups.

The government Equalities Office has produced guidance on implementing section 159 which is available from its website.