With the recent deadline for Gender Pay Gap Reporting passing (last month for public companies and earlier this month for private companies) and the consultation on Ethnicity Pay Reporting, the pressures on employers to take appropriate and credible action to move forward in a consistent and transparent way when dealing with issues of equality is ever increasing.
When scrutinising their statistics, employers may find that particular groups face a disadvantage in accessing or progressing through their organisation. A crucial starting point for employers is to recognise, and understand the steps required to remove, these barriers altogether. However, sometimes the only way to correct a historic imbalance will be to provide extra help or support for particular groups.
Lawful positive action
The Equality Act 2010 (“Act”) permits employers to take ‘positive action’ measures to level the playing field for people who share a particular protected characteristic (for example, sex, race, religion etc).
Section 158 of the Act sets out general positive action steps that may be taken, such as providing additional training, encouragement, or facilities. As long as the action taken is within the parameters set out by the Act, and meets the test of proportionality, it will not amount to unlawful discrimination under the Act.
Section 159 of the Act relates specifically to the use of positive action in recruitment and promotion, and permits what is usually impermissible in the so-called ‘tie-breaker’ situation. This allows an employer to treat a candidate more favourably because that candidate has a particular protected characteristic. Unlike positive discrimination, positive action will be lawful where:
- a candidate with a particular protected characteristic is ‘as qualified as’ other applicants to be recruited or promoted; and
- the employer reasonably believes a group with that protected characteristic is under-represented or suffers a disadvantage connected with that protected characteristic; and
- the more favourable treatment is proportionate.
Potential risks for employers
It is important that an employer’s recruitment and promotion procedures are thorough and consistent as employers may have to objectively justify their decisions to unsuccessful candidates. If proper procedures are not adopted, employers run the risk of expensive and potentially damaging unlawful discrimination claims.
The risks were highlighted in the recent tribunal judgment in Furlong -v- Chief Constable of Cheshire Police ET2405577/18, the first reported case on positive action provisions of the Act and the ‘tie-breaker’ situation. In this case, Cheshire Police Force had reasonably identified that female, BME, LGBT and disabled persons were under-represented protected groups. It sought to appoint from these groups by lowering the ‘pass’ threshold at the assessment stage so that 127 candidates passed and were then deemed to be of ‘equal merit’. The tribunal held that there were clear differences between these candidates and it was not a tie-breaker situation.
Cheshire Police Force had also adopted a policy of preferring protected group candidates by ignoring the qualitative assessment that had been done, leading to unlawful discrimination against white, male, heterosexual claimants without a disability, who would have otherwise been appointed. The tribunal held that this policy was not proportionate to the employer’s aim of improving diversity and a blanket approach of this scale was disproportionate.
Steps to consider before taking positive action
It is clear from this case that there are certain legal issues employers must be aware of, if considering taking positive action in relation to recruitment and promotion. However, if the provisions are followed correctly, employers can take the necessary steps to protect themselves from any potential unlawful discrimination claim arising.
First, employers must establish the candidate is ‘as qualified as’ or of equal merit for the post or promotion as other applicants, using objective criteria, so this provision could not be used to favour a less qualified candidate. Second, all suitably qualified candidates must be considered on their individual merits for the post in question. Employers must ensure they do not adopt policies or practices designed to routinely favour candidates with a certain protected characteristic, even where there is evidence of under-representation or disadvantage. Finally, treating the candidate more favourably must be a proportionate way of minimising or overcoming the under-representation or disadvantage, and should be balanced against the impact that the proposed action may have on other people.
Employers who think there is a need to level the playing field should monitor their workforces to ascertain whether there is an under-representation of groups with protected characteristics, and should review and implement equal opportunities policies. Positive action can be part of any recruitment policy and may be used to compliment other diversity measures implemented by an employer.