Positive action can play an important part in creating meaningful change in DEI. Here are some tips to help employers be proactive and bold in this area without stepping over the line into unlawful positive discrimination.

1. Collate and analyse evidence to establish whether there is a basis to implement positive action

This is an important first step – if there is no evidence that any groups are experiencing barriers an employer should not use positive action.

Government guidance suggests that sophisticated statistical data or research is not needed; however there still needs to be enough supporting evidence for the employer to show that it ‘reasonably thinks’ there is disadvantage, particular need or disproportionately low participation as per the requirements in the Equality Act 2010 (EqA).

2. Draw up an action plan

Government guidance refers to the suggestion in the EHRC Code of Practice that employers may wish to draw up an action plan when considering positive action which considers and documents:

• the evidence of the disadvantage, particular need or disproportionately low levels of participation, as appropriate, and analysis of the causes;
• the specific outcomes which the employer is aiming to achieve;
• the possible action to achieve those outcomes;
• an assessment of the proportionality of the proposed action;
• the steps the employer decides to take to achieve these aims;
• the measurable indicators of progress towards those aims, set against a timetable;
• how the employer will consult with relevant groups such as all staff, staff support groups and members of the protected group for whom the action is being established;
• the time period for the programme; and
• the period after which the employer will review the progress of the measures to ensure it remains proportionate.

3. Understand the difference between positive action and positive discrimination before making any decisions

If an action treating a particular group more favourably does not meet the statutory requirements for taking positive action, then it is likely be unlawful direct discrimination (often referred to as ‘positive discrimination’).

Remember that action taken to benefit those from a particular protected group, that does not involve less favourable treatment of those from another protected group, will normally be lawful without the need to consider positive action. For example, government guidance provides that placing a job advertisement in a magazine with a largely ethnic minority readership as well as placing it in a national newspaper would not be classed as positive discrimination. Also note that it is lawful for an employer to treat a disabled person more favourably in comparison to a non-disabled person without needing to rely on positive action.

4. When thinking about possible actions consider whether they are proportionate to addressing the problem identified

Any action taken must be proportionate for it to be lawful under the positive action provisions.

Proportionality refers to the balancing of all the relevant factors, so an employer will need to balance the seriousness of the disadvantage suffered or extent of under representation, against the impact that the proposed action may have on other people. Are there alternative methods which could achieve the same effect that are less likely to result in the less favourable treatment of other people?

5. Be clear on whether the ‘general positive action’ provisions or the ‘positive action in recruitment and promotion’ provisions within the EqA apply

The general positive action provisions do not apply in cases where the specific provisions on positive action in recruitment and promotion apply. The latter are more limited than the general positive action provisions.

6. Remember that positive action in recruitment and promotion can only be taken where the candidates being considered are ‘as qualified’ as each other in relation to the specific job or position they are applying for

This is a difficult area of the statutory test to satisfy, there is little case law on the meaning of ‘as qualified’ and it is an area which risks being open to challenge. Government guidance suggests establishing a set of criteria against which candidates will be assessed which might take into account a candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualifications as well as any other qualities required to carry out the particular job. It will be important to ensure that the criteria do not indirectly discriminate.

7. Do not have artificially low thresholds

An employer should not consider two candidates to be of ‘equal merit’ just because they have both passed the same test or assessment. Do not set artificially low thresholds when looking to apply positive action in recruitment and promotion. They are vulnerable to legal challenge.

8. Ensure there is no policy or practice which routinely favours candidates with a certain protected characteristic

Employers must not adopt a policy or practice which routinely favours candidates with a certain protected characteristic. Government guidance says that this does not prevent an employer from having a routine policy of being prepared to use positive action where it is appropriate for it to do so (provided that the need for the action is routinely reviewed to ensure it remains necessary and proportionate).

9. Monitor and review positive action

Be clear that positive action is only intended to be taken so long as the relevant conditions apply, rather than indefinitely, and during that period employers should monitor the impact of their action and review progress towards their aim. If having reviewed progress, the original aim has been met then there will no longer be a case for positive action and any measures designed to meet that aim should stop.

10. Be aware of the legal risks of using positive action

Use of positive action is entirely voluntary and there is no requirement for an employer to use positive action. Using positive action may have the consequence of relatively worsening the position of other individuals or groups, so there is likely to be some risk of complaint or even legal action against the employer. As such there may be some risk of a complaint or claim against the employer and it is important to be aware of the legal risks of using positive action. Employers may wish to consider getting legal advice before deciding to use positive action.