Government publishes positive action guidance

The Government has recently published guidance on the positive action measures in the Equality Act 2010. This guidance was one of the recommendations made by the Government in its Inclusive Britain report, which itself was a response to the Report of the Commission on Race and Ethnic Disparities published in 2021. The Commission was set up to identify racial disparities and inequalities in Britain and ways to address them.

The recommendation was "to support employers and industry sectors to create opportunity for groups that are underrepresented in their workforce, the Government Equalities Office will create new updated guidance on positive action by December 2022".

The guidance provides information for employers on what types of positive action are permitted.

What is positive action?

The Equality Act 2010 allows private sector employers to use positive action both on a general basis and as a tiebreaker in a recruitment or promotion process. 

This enables employers to take steps to provide a level playing field where a group of people with a particular protected characteristic suffer a disadvantage, have particular needs that are not being met, or are disproportionately under-represented in the workplace. In such circumstances an employer may take action by treating that group more favourably than those without the protected characteristic without being in breach of the Equality Act 2010.

It's not obligatory

Taking positive action is not an obligation – but a permissive power. There is no legal requirement for an employer to use positive action (although public sector employers will be aware that they may have a duty to consider positive action under their equality duty) but it can be a helpful tool to improve diversity and inclusion and employee satisfaction.

There are two types of positive action: general positive action and more specific powers in relation to recruitment and promotion.

General positive action

Employers can take steps to minimise the disadvantage suffered or address the differing needs or disproportionately low participation levels of a group with a protected characteristic within a workforce. When we say a protected characteristic, that means something like sex, race, disability etc.

Where this disadvantage exists, employers can take steps to tackle the situation; in other words, taking the positive action. This 'action' must be a proportionate means of achieving the aim of minimising that disadvantage, encouraging participation or addressing the needs specific to those staff members who have the relevant protected characteristic.

When we talk about proportionality, this involves carefully balancing factors such as the level and severity of the disadvantage or lack of representation and the impact of taking the positive action on the broader workforce.

An employer needs to have a reasonable belief that one of the relevant factors (of minimising disadvantage, addressing different needs, or addressing disproportionately low participation levels of a group with a particular protected characteristic) is met in order for action to be lawful. This requires evidence of some kind, although the Equality and Human Rights Commission Employment Statutory Code of Practice provides that this need not be sophisticated statistical data or research. Most employers are likely to have sufficient statistics to hand to be able to assess whether there is disadvantage to or low participation of a particular group within the workforce.

Recruitment and promotion – the tiebreaker provisions

Where an employer is dealing with recruitment or promotion, a situation can arise where the candidates are 'tied', because they are equally qualified. The positive action permissions in the Equality Act mean that the employer can opt for one of the tied candidates on the basis of a protected characteristic - if this is a proportionate means of addressing disadvantage or disproportionately low participation rates.

However, the employer must not have a more general policy of treating those who share a protected characteristic more favourably in connection with recruitment or promotion. Historically, the tiebreaker provisions have been subject to rigorous scrutiny by the courts and for that reason aren’t commonly used.

The question of whether candidates are of equal merit requires thorough assessment by an employer against carefully considered criteria and, again, the question of underrepresentation or disadvantage needs to have a basis in evidence. 

The guidance

The guidance sets out a detailed account of each of the forms of positive action and provides examples of what might amount to each. It also sets out three steps that an employer should take when considering whether to implement a positive action plan:

1. Assess why you want to take action

In most cases a decision to take action will arise from data or evidence which has come to the employer's attention. If for any reason this is not the case (for example, if positive action is being contemplated as a 'tiebreaker' to decide between otherwise equal candidates), then it is really important to establish evidence to demonstrate that a particular group is facing obstacles within the workplace.

2. Determine what action you should take

It is at this stage – when contemplating what will help to level the playing field – that an assessment of proportionality is necessary.

3. Determine how you will take that action

This includes determining how progress will be assessed, and putting in place any timescales for actions to be implemented and periods within which progress can be reviewed. It is worth highlighting that the EHRC Code warns that an indefinite action without review may become disproportionate (as the employer may fail to recognise if or when a barrier has been addressed). It is therefore appropriate to ensure that positive action is time limited and subject to ongoing review.

The guidance also draws the distinction between positive action (which is lawful) and positive discrimination (which is not), reaffirming that where the criteria set out in the Equality Act are not met, any more favourable treatment of a group with a protected characteristic will amount to unlawful positive discrimination.

Comment

The publication is likely to be welcomed by employers, as there has been no update to Government guidance in this area since the Government Equalities Office's initial advice note for employers on the positive action provisions of the Equality Act in 2011. However, while the updated guidance supplements the analysis set out in the EHRC Code, it does not provide much new information, and much of it simply replicates that produced by the EHRC.

It should nonetheless serve as a reminder to employers of the existence of provisions permitting positive action. In that regard, we should highlight that the EHRC Code sets out a number of potential benefits of positive action, including a business having a dynamic workforce, a better understanding of the needs of a diverse range of customers and foreign markets and a wider pool of talent from which to recruit.

When implementing positive action, it is important for employers to ensure that they are aware of the risk of worsening the position of other employees without a particular protected characteristic, which would constitute unlawful discrimination.

If an employer thinks that positive action is necessary within their workforce or would help to address identified issues then it should not be put off out of fear of its actions being found to be discriminatory. The Government guidance (available here) seeks to help employers in properly implementing positive action, as do the provisions of the EHRC Code (available here). As suggested by the Government guidance, employers should obtain independent legal advice before undertaking any action.

This article was also authored by Madeline Uren, Trainee Solicitor at Womble Bond Dickinson.