New government guidance has been published to help employers understand how they can use the ‘positive action’ provisions in the Equality Act 2010 appropriately to remove barriers to diversity in their workforce and enable equality of opportunity.

It is focused on the use of positive action in the workplace, including in recruitment and promotion.

Some groups of people who share a particular ‘protected characteristic’ (for example, race, sex, or sexual orientation) may suffer disadvantage connected to that characteristic, have different needs compared to others without that characteristic, or are underrepresented in certain activities.

The positive action provisions in the Act allow employers to take action that may involve treating one group that shares a protected characteristic more favourably than others, where this is a proportionate way to enable or encourage members of that group to:

• Overcome or minimise a disadvantage.
• Have their different needs met.
• Participate in a particular activity.

This is called taking ‘positive action’. Positive action is lawful (under certain conditions in the Equality Act 2010), whereas positive discrimination is not. Positive action is defined as voluntary actions employers can take to address any imbalance of opportunity or disadvantage that an individual with a protected characteristic could face.

Positive discrimination, on the other hand, would be where an employer recruits a person because they have a relevant protected characteristic rather than because they are the best candidate. It is also unlawful, for example, to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic.

There are two types of positive action that are set out in the Equality Act 2010:

General (section 158)
This involves proportionate actions which are designed to meet the three aims above. This could include, for example, providing a leadership scheme to help an underrepresented group achieve more senior positions in an organisation or providing tailored training for a group because they have specific requirements.

Recruitment or promotion (section 159)
This involves actions that reduce disadvantage and/or increase representation specifically when it comes to deciding between equally qualified candidates. For example, hiring one candidate over another equally qualified one because the former has a certain protected characteristic that is underrepresented in the workforce. Other activities which are related to recruitment (for example, jobs fairs targeted at ethnic minority groups), but do not involve choosing between candidates, fall under the ‘general’ (section 158) provisions.

Positive action is entirely voluntary. There is no requirement for an employer to use positive action. However, to ensure that groups with a particular protected characteristic are not being excluded or disadvantaged in the workplace, employers can take positive action measures to help minimise that disadvantage. This could include taking action to increase their participation in the workforce where the employer reasonably thinks that this is disproportionately low, or to meet their particular needs relating to employment.

Using positive action to redress an imbalance for underrepresented groups may have the consequence of relatively worsening the position of other individuals or groups, so there is likely to be some risk of complaints and even legal action against the organisation taking the action. It is a good idea to get legal advice before deciding on a positive action programme based on a protected characteristic.

Read the full guidance here.