Positive action: the new rules

There is an overwhelming business case for diversity. Nearly three-fifths of UK organisations have a diversity strategy, most commonly used in monitoring recruitment and training interviewers.  In addressing initiatives to make the workplace more diverse, there is one guiding principle: positive action is legal, but positive discrimination is illegal.

Balanced workforce
It is illegal to treat someone applying for a job more favourably on the grounds of the nine 'protected characteristics' – race, disability, age, gender, religion/belief, marital status, pregnancy, sexual orientation, gender reassignment – unless there is a genuine occupational requirement for doing so.

But it is legal for employers to achieve a more balanced workforce by using positive action, entirely voluntarily, to recruit or promote someone with a protected characteristic with three important provisos:
  • the person in question is as qualified as other applicants. This may be difficult to ascertain, particularly in non-technical or more senior roles where candidates' experience is likely to be more varied, which could lead to challenges from unsuccessful candidates
  • the employer does not have a policy of treating persons of the particular under-represented or disadvantaged group more favourably in connection with recruitment than persons who do not share the relevant protected characteristic
  • the more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation.
Employers can also focus their recruitment activity in particular areas to encourage more applicants from under-represented groups. For example, advertising vacancies in publications which have a high readership among a group with the protected characteristic needed to create a balanced workforce.

Although organisations may thus encourage applications from under-represented groups, subsequent selection procedures must be non-discriminatory. It is also acceptable to set a target figure to achieve a balanced workforce – but not to set a quota which involves only employing people from under-represented groups or favouring them throughout the application process.

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