Equality Act 2010 Positive Action Provision to Be Implemented
The UK's Coalition Government has, rather surprisingly, announced that it intends to implement a provision in the Equality Act 2010 allowing employers to take positive action in favour of protected groups when recruiting and promoting.
This provision (section 159 of the Act) was included in the legislation by the previous Labour Government and the Coalition had signalled that it was unlikely to bring it into force. But whilst the measure has previously been the subject of somewhat sensationalist reporting by some sections of the British media, there is no cause for employers to be unduly alarmed. It will not mean that "women will get priority" or that any groups in particular will be preferred over others for jobs or promotions.
The provision does allow an employer to prefer a candidate with a protected characteristic over a candidate from a non-protected group. However, this can only be done where two candidates are "as qualified" as each other. In addition, the employer must reasonably believe that persons who share that characteristic suffer a disadvantage, or have disproportionately low participation in a particular activity. Positive action is then allowed if it is a proportionate way of overcoming the disadvantage or enabling participation.
For example, if an engineering company reasonably believes that women are under-represented in its workforce and is faced with male and female candidates of equal merit, it could choose the female candidate. In contrast, another employer, such as a nursery, that believes men are under-represented could choose a male candidate if he is equally qualified with female applicants. The Government Equalities Office has stated clearly that neither employer would be obliged to take positive action in these circumstances - it is purely voluntary.
It is questionable what impact this provision will have, given that it must be a very unusual situation where two candidates are so equally qualified. In most circumstances, an employer will have a view as to which is the better candidate. As positive action is voluntary, many employers may choose not to take up the option anyway - particularly if they do not want to take the risk of getting it wrong and facing a claim for discrimination from the unsuccessful candidate.
The decision to bring section 159 into force - with effect from April 2011 - is included in the Government's new Equality Strategy (PDF). The Government plans to issue guidance on the issue early in the New Year.
This entry was written by Richard Lister.
Image credit: danleap
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