Voluntary positive action in recruitment and promotion

Under section 159 of the EA 10, the law 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 EHRC 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.

In practice, few employers are likely to use this new law because of the risk of claims. Employers will rarely be able to say confidently that two candidates are “equally qualified”, and preferring one over the other exposes the employer to a possible discrimination claim. Demonstrating “under-representation” of the disadvantaged group may also be difficult, since many workforces can point to a variety of under-represented groups, for example, women, men, the old, the young, or particular ethnic groups.