What are the narrow circumstances in which an employer can lawfully take “positive action” to prefer those with a particular protected characteristic over those who do not share that characteristic, when recruiting or promoting new staff?
Ordinarily, treating a worker less favourably because they have a particular protected characteristic would amount to direct discrimination. However, the Equality Act contains provisions which allow for “positive action”, under which employers are, in certain circumstances, permitted to give preferential treatment to those with a particular protected characteristic, over those who do not share that characteristic, in order to address disadvantages that those with that characteristic may suffer from, or to promote opportunities for under-represented groups.
The Equality Act allows for two types of positive action: general positive action; and positive action in recruitment and promotion, which is the subject of this article.
How does positive action work in recruitment?
An employer can take positive action with respect to recruitment and promotion where it reasonably thinks that either:
- Persons who share a protected characteristic suffer a disadvantage connected to that characteristic; or
- Participation in an activity by persons who share a particular protected characteristic is disproportionately low (e.g. the number of women carrying out a certain type of role may be disproportionately low).
In recruitment, if the employer is acting to address either of the two issues identified above, it can treat candidates with the relevant protected characteristic more favourably than those who do not share that characteristic, but only if:
- The candidate with the identified protected characteristic, and the one without it, are equally qualifiedfor the role;
- The employer does not have a policy of treating those who share the protected characteristic in question more favourably in connection with recruitment or promotion than those who do not share it (i.e. there must be an objective assessment of the candidates’ qualifications, rather than applying a blanket policy), and
- Taking the action is a proportionate means of achieving a legitimate aim. In practice, this will involve balancing the seriousness of the disadvantage suffered or the extent of under representation, against the impact that the proposed action may have on other people, and considering whether there are alternative methods available which could achieve the same aim, that would have less of a negative impact on those that do not share the protected characteristic in question.
Examples from case law
In the case of Furlong v Chief Constable of Cheshire Police, Cheshire Police determined that lesbian, gay, bi-sexual and transsexual people, women, and people from black or minority ethnic backgrounds were under-represented in their force, and accordingly attempted to apply positive action measures by giving preference to applicants with those characteristics.
Mr Furlong (a white heterosexual man) applied for the position of police constable and passed the assessment centre and the relevant interviews. His application was however unsuccessful as a result of the positive action, and he sued for direct discrimination.
The Tribunal determined that the groups identified above were underrepresented in the force (meaning it was lawful to take positive action), but that Cheshire Police had given preference to candidates from those groups who were not as well qualified as Mr Furlong (which breached the requirement that preferential treatment is only lawful if the candidates are equally well qualified).
In the recent case of Turner-Robson and others v Chief Constable of Thames Valley, a minority ethnic Sergeant was moved into a Detective Inspector role without undertaking any competitive promotion exercise, as a way to try and address the fact that ethnic minorities were under represented at that rank.
The Tribunal determined that the way in which the force has acted in order to promote the ethnic minority group was not a proportionate means of achieving the aim in question. It was not also necessary to simply give the Sergeant the role, as they stood a good chance of being appointed anyway, and the force had failed to carry out a balancing exercise to consider whether the proposed positive action was proportionate. Accordingly, the force’s actions in not giving others who were not from the minority in question the opportunity to apply amounted to direct discrimination.
Learning points
Clearly, the circumstances in which an employer can take positive action are very narrow – among a number of other requirements, this action can only be taken as a way to decide between two equally qualified candidates. Further, the cases discussed above demonstrate that any attempt to utilise the positive action provisions in the Equality Act will be very carefully scrutinised.
Employers must therefore take care to ensure that they have met the necessary requirements before taking any positive action, including carefully considering whether the aim they have identified is being pursued in a proportionate way.
William Clift
William Clift is a Senior Associate at Winckworth Sherwood specialising in employment law for both employees and employers. He has a strong history of securing favourable settlements, navigating disciplinary actions, and managing role transitions with a focus on restrictive covenants and compensation schemes. Clift represents clients in Employment Tribunal and High Court cases, covering issues like unfair dismissal and sex discrimination. He also advises employers across various sectors on strategic HR practices to reduce litigation risks.
