Government to allow employers to use positive action in recruitment

Employers will be allowed to use positive action in recruitment and promotion from April 2011, the Government Equalities Office has said as it published its equality strategy.

The GEO, which will issue formal guidance for employers on the issue next year, said: “Employers will be allowed to consider using positive action where there is enough evidence to make them reasonably think that people with a protected characteristic suffer some sort of disadvantage because of that characteristic or are disproportionately under-represented.

“When either of those two conditions apply, this new provision will enable an employer who is faced with making a choice between candidates who are of equal merit to opt to offer that job to a candidate with a targeted protected characteristic.”

It cited a primary school choosing to appoint a male candidate who is of equal merit to a female candidate as an example of where this might happen.

However, it insisted that all recruitment or promotion must still be based on merit.

Warning that positive discrimination is illegal and would remain illegal, the GEO said: “Using these provisions does not mean that people will be recruited simply because of their gender or the colour of their skin. That would be positive discrimination and that will remain unlawful. Where there is a superior candidate then that candidate should always be offered the job.”

The government added that the use of positive action would be entirely voluntary, and employers would not be compelled to use.

“There are safeguards in place to prevent employers from misusing these measures and the provisions make clear that employers must not have any policies or practices which routinely favour candidates with a protected characteristic,” it said.

The GEO announced that it would work with private and voluntary sector employers with more than 150 employees to promote reporting of equality data. However, this will be done on a voluntary basis.

The government plans to review each year the number of companies reporting equality data and will assess whether alternatives are required, “including using a mandatory approach through section 78 of the Equality Act”. It ruled out commencing, amending or repealing that section while it is working on making the voluntary approach successful.

A consultation was launched in August on increasing the amount of information public bodies are required to publish in relation to their workforces and the services they provide.

The equality strategy also sets out the government’s determination to take action on pay discrimination. It is expected to publish a consultation paper on this issue shortly.

Equalities Minister Lynne Featherstone said: “We want to move away from the arrogant notion that government knows best to one where government empowers individuals, businesses and communities to make change happen. Different organisations face different challenges in promoting equality so if we are to get this right for everybody a much more flexible approach is needed.

“These plans are absolutely not about political correctness, or red tape, or quotas. They are about giving individual employers the tools they need to help make the workplace fairer.”

Law firm Hammonds warned that employers might be wary of taking positive action even when the relevant conditions are satisfied.

It said: “As use of the power is voluntary, individuals should not be able to challenge an employer for not taking positive action. There is a risk, however, that an unsuccessful candidate for a job or promotion from what he considers to be an under-represented group might argue that the employer’s failure to avail itself of Section 159 is evidence of a discriminatory approach.

“Equally, the omission of any definition of ‘as qualified as’ leaves it open to a majority-group candidate to argue that in some respect he was better qualified than the successful candidate and therefore that he has been prejudiced by his race or sex, etc., even though his group was over-represented in the workforce.”

The equality strategy can be downloaded here.